I just returned from today’s arguments in the lawsuit by 20 states challenging Obamacare. From my perspective, it looked like a victory for constitutionally based limited government, in part because merely stating the breadth of the federal government’s arguments undermines them.
The federal government’s position expands the Commerce Clause — already stretched to the breaking point — to permit federal regulation of “the decision not to buy health insurance.” But calling inaction a “decision” does not transform it into regulable economic activity. As David Rivkin, attorney for the states and other plaintiffs in the case, argued, the government had the permissible alternative of regulating health-care payment at the point of purchase, saying for example that no one could pay for services except using insurance. The government claimed that waiting to regulate until someone actually did something was splitting constitutional hairs, but that hair may be all that is left of the Commerce Clause’s limitation on government power.
The government’s arguments, based on Wickard v. Filburn, exposed their logical error. They claimed that Wickard required a farmer to buy wheat on the open market because it regulated the total quantity of wheat he grew, even for home use. But the government misstated the case today by suggesting that the law forced farmer Filburn to buy wheat on the open market. On the contrary, Filburn could have gone wheat-free, opting to use other grains to feed his animals and his family. He still had a choice, and was only subject to the regulation when he took action and sowed his wheat, unlike today’s citizen, who cannot opt out of the government’s regulatory system.
Indeed, the government stated that “you can’t opt out of health care,” relying on its assumption that individuals opting out of insurance will inevitably turn into free-riders if they get sick later and receive uncompensated care. But those who get sick later and cling to old-fashioned notions of personal responsibility also may actually pay for their care, forgo it knowing they cannot pay, or rely on voluntary charitable donations rather than coerced government funding by all taxpayers.
And, as Rivkin pointed out in the plaintiffs’ argument, individuals who free-ride on the system exist in all areas of the economy, from those who default on credit-card payments, driving rates up for other users, to the catastrophic results of mass mortgage defaults in recent years. The government’s argument would give them an entree to unlimited regulation of practically any area of life.
All this is to ignore the government’s disturbing perspective on the tax power. It seemed willing to categorize any law that includes a monetary penalty as a tax, thus subjecting it only to the broad constitutional requirement that it be for the “general welfare.” That bootstrap could make all other constitutional limitations irrelevant, as Congress would only need to include financial penalties to make any law constitutional.
Judge Vinson did suggest he was leaning toward granting the motion to dismiss on a couple counts, but also indicated that he believed others would survive. His comments from the bench suggested that he was sympathetic to the plaintiffs’ central arguments, querying how the government could claim inactivity was activity, and even suggesting their arguments about whether or not Obamacare was a tax were intellectually dishonest. Stay tuned for his ruling October 14 — just in time to remind the voters about health care before the November elections.