Mar 27 2012

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The Constitution & the Individual Mandate

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What is Constitutional, Not What is Necessary...

Today, the Supreme Court will get down to business, hearing oral arguments on the most controversial provision of Obamacare – the “individual mandate.”

Specifically, can Congress modify the terms of citizenship to require Americans to enter into a contract for health insurance, or failing that action, pay a penalty?

Obamacare supporters believe there is sufficient  established authority through three constitutional provisions.

There is the “necessary and proper” clause, which gives Congress the power to make whatever laws are essential to execute its power.

Then there is the “commerce” clause, which provides Congress power, “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

Finally there is Congress’ “tax authority.” “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.”

The first day’s oral argument already highlighted a remarkable contradiction between Obamacare’s political and constitutional requirements as it pertains to Congress’ taxing authority. At issue was an arcane 1867 law that prohibits judicial action on tax issues until such time as the tax has actually been collected.

It is relevant here, as the judgements rendered as a result of the individual mandate will not occur before 2014.

Speaking for the Administration, Solicitor General Donald Verilli was left in the unenviable position yesterday of maintaining that penalty under individual mandate did not constitute a tax for the purposes of the 1867 law, while at the same time reserving the right to argue the opposite point today in discussions on the individual mandate.

Justice Scalia summarized succinctly. “Today you are arguing that the penalty is not a tax.  Tomorrow you will be back and arguing that the penalty is a tax. Has the [Supreme] court ever held that something that is a tax for the purposes of the taxing power under the Constitution is not a tax under the [1867] law?

Verilli’s answer was “no.”

Thus, ironically, to achieve the President’s political requirement that the Affordable Care Act have no new taxes, Congress muddied the constitutional waters  – and the government’s potentially strongest argument – by approving a “penalty” that supporters maintain looks and acts and would be collected as a tax, but is in fact not one.

The result leaves the penalty on shaky constitutional ground.

Advocates for Obamacare will have the same kind of problem with the “necessary and proper” clause. While this is an enumerated power under the Constitution, the provision has, over time, become a tool of legislative circular reasoning, justifying an ever expanding list of activities by Congress as they are “required” to do Congress’ job.

It is only checked by the 10th amendment, which states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The 26 states that have joined in the lawsuit against Obamacare are the living embodiment of the argument against congressional power in this instance.  Indeed, if the Affordable Care Act is ruled constitutional, then the 10th amendment will necessarily be rendered moot.

And finally the “commerce” clause.

As with “necessary and proper,” this authority too has been expanded over two centuries to cover or compel non-activity.

 In 1942, the Court ruled that the government had the authority under the commerce clause to prevent a farmer from growing wheat for his personal use – clearly not a commercial activity. More recently, the Court ruled that Congress could criminalize the production and use of home-grown marajuana, even where states approve its use for medicinal purposes.

But while the Court has sanctioned the use of the commerce clause to prevent commercial activity to achieve government goals, there is no judicial precedent for the use of the commerce clause to compel activity. Thus the only way to to affirm Obamacare under existing law would be to expand the commerce clause in a manner that would render it unrecognizable under existing precedent.

Which creates the dilema.

Congress has effectively created an unconstitutional law to meet what almost all corners of the political spectrum identify as a pressing societal need – health-care reform.

Health-care accounts for about 17% of American GDP. Studies indicate that the average American family pays $1,000 annually in the form of higher permiums to subsidize the costs incurred by those who receive care but do not carry insurance.

Obamacare supporters argue that under the status quo, insurance companies are unable to offer affordable coverage to those with preexisting conidtions,without the guaranteed enrollment of the young and healthy, who diversify and fortify the risk pool. Only through the mandate then, can the government achieve the twin goals of universal coverage and lower cost.

Which is the real progressive argument – that the facts of the case by themselves constitute a prima facie constitutional threshold.

That the need makes it constitutional.

This is where the unstoppable power of progressivism runs head long into the unmoveable force of the Constitution’s enumerated powers.

The fact is that a compelling social requirement, no matter how pressing, does not change fundemental constitutional principles.  The argument about Obamacare is not whether it is a good law or a bad law, but whether it is a constitutional law.

Should SCOTUS rule against Obamacare, it will not be the judgement of the Court that health-care in America is functioning effectively or even that the individaul mandate is not the most effective manner to cope with financing the uninsured.

It is simply that the law does not fit within the context of enumerated powers.

But for all the progressive grumbling about the limitations of enumerated powers, the Founders did provide a mechanism for to deal with future circumstances that they could never anticipate – the constitutional amendment.

Progressives were once champions of this approach.

When SCOTUS ruled in 1894 that prevailing income taxes, which were levied during and after the Civil War, were unconstitutional, progressives pushed for and passed the Sixteeth amendment, providing for a national income tax (1913).

But more recently, progessives have all but given up this path after the ERA amendment debacle, preferring the kind of SCOTUS innovation and sorcery that resulted in Roe v. Wade – which helpfully bypassed Congress and the citizens at large, to achieve progressive goals by use of judicial fiat.

And that is what is at work today – an attempt to force Obamacare’s round peg into the Constitution’s square hole.

It does not help the law’s case that if it were put to a vote through an amendment process, the provision would not have mustered the votes to get out of Congress let alone garner the support of a majority of states.

Not today, but at the time of passage when Democrats were running the show.

That speakes to the existential flaw of Obamacare – it does not enjoy the consent of the governed.










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