Heart over Head in the Obamacare Battle

If ever proof were needed that judicial philosophy matters, it can be found in Judge Steeh’s decision in Thomas More Legal Center v. Obama. This challenge to the Patient Protection and Affordable Healthcare Act of 2010 was filed last spring in the U.S. District Court for the Eastern District of Michigan. Judge Steeh, who was appointed to the federal bench by President Clinton, rejected the challenge and concluded that Congress does indeed have authority under the Commerce Clause to require that nearly every American have congressionally approved health insurance. The fact is that how any particular judge views Obamacare depends very much upon what his or her view is regarding judiciary’s role and how faithful judges must be to the Constitution’s original meaning.

The Framers adopted a system in which the national government would exercise limited and enumerated powers, while the states alone would be vested with ability to legislate for the general welfare (as best they might understand it), and impose requirements and obligations on the people without regard to any particular type of commercial activity in which the regulated individuals or entities might be involved. Judges who believe that the Constitution must be construed in accordance with this original meaning and design have little choice but to conclude that Obamacare is an unconstitutional federal attempt to exercise the type of general “police” powers the Constitution reserved to the States.

On the other hand, judges like Judge Steeh, who clearly believe that the judiciary must interpret the Constitution in accordance with evolving “values” and their own understanding of how that document should apply to contemporary society, are far more likely to conclude that — regardless of the Framers’ design and the Constitution’s clear limits on federal power — Congress can lawfully impose a requirement that Americans obtain and maintain health insurance for themselves and their families. This being the case, challenging Obamacare in a federal court located in the most liberal part (Detroit) of an increasingly liberal state was itself a serious mistake.

In addition, the Thomas More Legal Center plaintiffs made a number of choices about how they presented the issues in their complaint, and in their papers seeking a preliminary injunction against Obamacare, that made it far easier for Judge Steeh to rule as he did. First, the complaint focused on aspects of the new law that are not central to its purpose and design, and/or which are far more easily upheld under the Supreme Court’s current precedent, than is the individual insurance mandate. This includes allegations regarding the “funding of abortion through the Health Care Reform Act,” and suggestions that Obamacare favors labor unions because “these organizations share the same political views of Defendants and of those currently in power in Congress.”

Regardless of political motivation, Congress’s power to tax and spend is broad, and has been interpreted broadly by the Supreme Court. A frontal assault on this settled body of precedent was doomed from the start and plaintiffs failed effectively to confront and answer the government’s arguments in this regard. It is not surprising that Judge Steeh relied on Congress’s spending power as an important basis of his decision upholding the law.

Second, rather than engage the administration’s legal and policy arguments, the Thomas More plaintiffs accused the government, among other things, of engaging in “Wonderland-like Looking Glass” analysis and concentrated much of their effort on questioning Congress’s motives in enacting Obamacare in the first place. Although the government’s arguments defending the new law are, indeed, often contradictory and even bizarre, it would have been far more effective to point out these inconsistencies and weaknesses while eschewing high rhetoric, however poetic. Moreover, it is well-established that courts will not, as a rule, explore Congress’s motivations for enacting a particular measure so as not to “second-guess” the legislative branch in carrying out its constitutional authority. Making that motivation a central aspect of the challenge to Obamacare was a very significant error.

Third, the Thomas More plaintiffs failed to engage and answer the government’s use of Gonzales v. Raich (2005), the most recent Supreme Court case construing the Commerce Clause. The government argued that Raich stands for the proposition that Congress may regulate any activity (and effectively inactivity) that may affect interstate commerce so long as the relevant provision is part of some broader regulatory regime. In the absence of objection, Judge Steeh was free to adopt this view of Raich, even though that is manifestly not what the Court decided in that case. (In fact, the Court’s decision was grounded in the much narrower proposition that, if Congress can legitimately regulate the production, sale, and use of a particular commodity — marijuana in that case — in interstate commerce, it also can reach purely intrastate forms of that otherwise regulable activity in order to ensure that its overall regulatory scheme is not undermined.)

Finally, plaintiffs made a major mistake in seeking a preliminary injunction, which would require a finding of irreparable harm, years before Obamacare will take effect, and at the same time asking the court to consolidate its decision on preliminary relief with its decision on the merits of their claims. Whatever the judge’s views, by taking this position plaintiffs actually made it more difficult for themselves to present a winning case. By raising their own bar in this manner, they actually made it easier for the government to win. Haste does indeed make waste.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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