international analysis and commentary

The real stakes in the “Obamacare” case


Robert Kennedy used to say, “Some men see things as they are and ask ‘Why?’ I dream things that never were and ask, ‘Why not?'”

Until this week, informed legal opinion almost uniformly insisted that the US Supreme Court would uphold the Affordable Care Act (now called “Obamacare” even by President Obama). But now that conventional wisdom has largely flipped and observers expect the Court to declare at least the key portions of the law unconstitutional. What happened? The case was finally argued before the High Court and a majority of Justices expressed  severe doubts about the law’s constitutionality. 

What had all the experts missed pre-argument? Very simply, the assumption that the Court inevitably had to uphold the law – particularly, its most controversial provision, the individual mandate – is based on constitutional doctrine as it currently is and assumes the justices must necessarily go along with that. In reality, a large number (at least four and perhaps a majority) of justices dream things that never were – at least, not for the last 80 years – and ask, “Why not?”

As I wrote for Aspenia online two years ago when the healthcare law was enacted, the practical effect, if not the form, of the individual mandate is no different from any number of programs enacted by the federal government since the New Deal era, including Social Security and Medicare. If anything, it reflects the less statist, more market-oriented times in which we now live.  While all Americans will have government-required health coverage, they will be given a choice between securing private insurance or, by default, paying into a government-run pool to pay for the de facto coverage they will receive when they, at some point, need care. 

This is, essentially, what was done with the enactment of Medicare Parts C & D, which allow older Americans to choose private medical and pharmaceutical plans instead of the standard circa-1960’s government-run plan; but, in any event, they must have one or the other, and they were taxed their entire working lives specifically to pay for this. These private alternatives to the government-run option were never before opposed by Republicans and Tea Party advocates as unconscionably and unconstitutionally forcing people to buy private products against their will – as is now the argument against the Obama mandate – in fact, they were enacted under Republican Congresses and a Republican president, and were viewed, at least in conservative precincts, as improvements over the Democrats’ preferred solution of having the government alone cover everyone. (And the much ballyhooed Republican budget plan of Rep. Paul Ryan (R-Wisconsin) contains a similar notion of pushing virtually all seniors into private insurance; sure, it’s using the government’s money rather their own to pay the premium, but who do you think the government got that money from to begin with?) As has been widely discussed this year, the idea of extending this approach to healthcare generally originated in conservative think-tank circles, as well.

In short, any departure of the Obamacare mandate from what has been American practice for several generations now – government “forcing” people to “buy” services whether they want them or not – represents a distinction without a difference. So what has changed? The cynical might suggest that the independent variable is Obama: Since it’s his law, Republicans oppose it. While that may drive some in the über-polarized world of current American politics, I don’t think that’s the explanation. Instead, what has changed is the constitutional climate.

For at least 30 years, conservative legal scholars, lawyers and jurists have advanced legal arguments that essentially render unconstitutional everything enacted since Franklin Roosevelt.  They assert that the constitutional separation of powers (which, unfortunately, given the conservative preference for “strict construction”, is nowhere mentioned explicitly in the constitutional text) prohibits the delegation of modern rulemaking authority to executive branch agencies, leaving most of the Administrative State we currently know outside constitutional bounds. They argue that the Fifth Amendment’s prohibition on the taking of private property without just compensation requires that businesses and property owners be reimbursed for the market-value effects of regulations (e.g., if I can’t pollute, then I have a lower profit-margin, my factory is worth less, and so the government must compensate me), which would make most environmental, labor and public safety regulations cost-prohibitive. And, most of all, they believe that the federal government’s authority, in general, has been read overly expansively to extend to virtually all areas of human activity today under a Depression-era interpretation of the meaning of “interstate commerce” that recognizes virtually all commerce today as “interstate”; without that, the federal government would be confined to regulating the shipment of goods from state to state, but not economic activity within states, like, say, workplace conditions, the actual emission of pollution, racial discrimination, or, well, virtually all areas of human activity, which occur somewhere, not “interstate”.

These are not constitutionally frivolous arguments. They’re just not arguments that have carried the day since the first third of the 20th century. But they did, in fact, carry the day before that – and their adherents believe that they should again, because they’re what (they say) the Framers intended.

It’s not my intent to debate here constitutional history and interpretation. Rather, my point is a simpler one: that this constitutional viewpoint has been waiting for its day to arrive for several decades, and that day likely has now come in the form of the Obamacare case. It is unlikely that the Supreme Court will anytime in the foreseeable future find a case that so squarely, or so favorably for opponents of federal power, presents the question whether the commerce clause rulings of the 20th century – and thus the entire regulatory and welfare state as we know it – run afoul of constitutional intent. For the many lawyers and justices who share this agenda, this is a once-in-a-century opportunity. One has to assume that at least four of them are now asking, “Why not?”