Of all the problems with the Affordable Care Act, two fundamental flaws in President Obama’s self-described “legacy” are that the legislation unconstitutionally originated in the Senate, and that it violates the Tenth Amendment — the final provision of the Bill of Rights. Hereafter, the “Affordable Care Act” will be called “Obamacare,” not for derogatory reasons but because the official name of the bill misrepresents what it is.
Lawsuits challenging Obamacare on both issues are currently pending. Sissel v. HHS and Hotze v. Sebelius challenge the law under the Origination Clause, and are likely on their way to the Supreme Court, with stops currently at the D.C. Circuit and the Fifth Circuit Courts of Appeals respectively. In Sissel v. HHS, 44 members of Congress signed an amici curiae brief in support of the plaintiff-appellant’s position. Another lawsuit in Wisconsin, Association of American Physicians & Surgeons v. IRS, presents a Tenth Amendment frontal assault on what remains of the ACA after the Supreme Court’s 2012 ruling in NFIB v. Sebelius.
In that case, the Court ruled 7 to 2 that the “Medicaid expansion” portion of Obamacare “violates the Constitution [i.e., the Tenth Amendment] by threatening existing Medicaid funding.” In his decision, Chief Justice Roberts explained that “Congress has no authority to order the States to regulate according to its instructions.” This ruling, often overlooked by the media,was in the same case in which the Court, narrowly and conditionally, upheld the individual mandate under “Congress’s power to tax.”
The Tenth Amendment foundation upon which the Supreme Court struck down one portion of Obamacare rests upon an earlier ruling that the federal government cannot “compel” a state, as an independent sovereign in our country’s federal system, to regulate. In that 1992 ruling, New York v. United States, the Court determined that “the Constitution simply does not give Congress the authority to require the States to regulate.” As Justice Roberts noted — quoting Steward Machine Co. v. Davis (1937) — in the majority opinion in the 2012 landmark case, “when ‘pressure turns into compulsion,’ the legislation runs contrary to our system of federalism.” While the states’-rights challenge to the Medicaid expansion part of Obamacare in 2012 was based upon, and repeatedly cited, the 1992 precedent, the Supreme Court did not consider that same Tenth Amendment challenge to the individual mandate.
The 1992 opinion relied heavily upon a 1936 decision, United States v. Butler, for its explanation that “the Tenth Amendment confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States. . . . ‘The question is not what power the Federal Government ought to have but what powers in fact have been given by the people.’”
Butler examined the constitutionality of the Agricultural Adjustment Act of 1933, a bill that enacted processing taxes on agricultural commodities. In striking down the law, the Court explained: “The act invades the reserved rights of the states. It is a statutory plan to regulate and control agricultural production, a matter beyond the powers delegated to the federal government. The tax, the appropriation of the funds raised, and the direction for their disbursement are but parts of the plan. They are but means to an unconstitutional end.”
The Court further held in Butler that “The power of taxation, which is expressly granted, may, of course, be adopted as a means to carry into operation another power also expressly granted. But resort to the taxing power to effectuate an end which is not legitimate, not within the scope of the Constitution, is obviously inadmissible.” (Emphasis added.) In other words, Congress cannot use its taxing power to allow it to control something it has no constitutional power to control.
Wittingly or not, the Chief Justice’s 2012 conditional conclusion that the individual mandate “is within Congress’s power to tax” was diametrically opposed to the Supreme Court’s reasoning in Butler. Then again, our current Supreme Court was standing more for a Constitution that was living, breathing, moving, and serpentining.
If one were simply to substitute Obamacare for the Agricultural Adjustment Act of 1933, and “health care” for “agricultural production,” the Court’s 1936 constitutional analysis should still hold: “[Obamacare] invades the reserved rights of the states. It is a statutory plan to regulate and control [health care], a matter beyond the powers delegated to the federal government. The tax, the appropriation of the funds raised, and the direction for their disbursement, are but parts of the plan.”
How could something “obviously inadmissible” under the Tenth Amendment 78 years ago be conditionally approved by the Supreme Court in 2012, even as the Court was reaffirming the federalism principles underlying the Tenth Amendment in the same case? Sooner or later the U.S. Supreme Court should deal with the elephant it has brought into the room by ignoring clear Tenth Amendment precedent.
— Representative Louie Gohmert is vice chairman of the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security. Before being elected to Congress, he served as chief justice of Texas’s Twelfth Court of Appeals. He is a co-signer of the amici curiae brief in Sissel v. HHS. . . . Joseph E. Schmitz is a former inspector general of the Department of Defense (2002–05), pro-bono counsel to the signers of the amici curiae brief in Sissel v. HHS, and the author of both The Inspector General Handbook: Fraud, Waste, Abuse, and Other Constitutional Enemies, “Foreign and Domestic” (Center for Security Policy, 2013) and “The Forgotten Preamble: Introduction to the Bill of Rights Gives More Meaning to the Tenth Amendment,” FYI (American Legislative Exchange Council, April 24, 1996).