My Testimony on the Constitutionality of Obamacare

Earlier today I testified before the House Ways and Means Committee’s Health Subcommittee regarding the constitutionality of Obamacare. My written testimony summarized the Commerce Clause and Necessary and Proper Clause problems with the law and can be found here. I include below the shorter oral version I presented this morning:

“If men were angels, no government would be necessary.” 

We’ve all heard this famous quote from James Madison in Federalist 51, but rarely do we hear the rest of the quote even though it is absolutely crucial. 

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

I submit that the Patient Protection and Affordable Care Act embodies precisely the type of uncontrolled government power that Madison and the founders recognized as a fundamental threat to our liberties. 

Having just fought and won a revolution against a despotic central government, the framers of our Constitution were not about to tolerate the least slide back to tyranny. So they divided government power among three branches and were careful to limit Congress’s legislative authority to a specific list of powers and no more.

Congress explicitly invoked its power under the Commerce Clause as its authority for the health-care law and its individual mandate in particular.

It was wrong for three major reasons.

First, the individual mandate goes against 200 years of history and precedent.

In every Supreme Court affirmation of federal power under the Commerce Clause — from regulating home-grown wheat to regulating homegrown marijuana — you could always avoid government impositions by simply not participating in the regulated activity in the first place. But with the health-care law, you are automatically subject to regulation simply by virtue of being born.

Now if the federal government has always had such a direct and unavoidable power over its citizens, it would have surely exercised it long ago, and for emergencies far more pressing than health-care reform, such as during the Great Depression or World War II. But it did not, and that lack of historical support is strike one for the individual mandate.

Strike two for the individual mandate is the fact that compelling individuals to buy a product is a far different thing than regulating an existing market.

This is why the administration struggles mightily to blur this distinction, by, for example, claiming that people who choose not to buy health insurance now can nevertheless be regulated now because they are likely to consume health-care services someday in the future. But there is a constitutional difference between actual and potential participation, because after all, we are potential participants in every single market that we consciously choose to avoid. Worse still, bystanders forced into the health insurance market have only one legal exit, and that’s moving to another country.

The third problem with the administration’s argument is that it lacks any limiting principle.

The Supreme Court has repeatedly said that the federal government’s power must have a stopping point, because the structural limits on our government are central guarantees of individual liberty.

The limiting principle relied upon by the administration really just boils down to a claim that “health care is different.” But the market for health insurance — or even health care — is not unique. There are many other products in life like food, clothing, and shelter that nearly every American will purchase now or someday and are just as, if not more necessary to human happiness than health care. Moreover, if the federal government can force Americans to purchase health insurance to lower national health-care costs, why can’t it issue “broccoli mandates” and compel gym memberships also in the name of lowering health-care costs? 

But let’s presume that the administration is right and health care is somehow unique. That isn’t a limiting principle but an invitation for government to label any grand scheme it wants to impose on Americans as unique simply because it is grand. At that point, the theoretical limit on the power of government will be the power of one’s imagination.

I think the administration recognizes these weaknesses in its arguments, and has hedged its bets by emphasizing the Necessary and Proper Clause in its most recent briefs.

But the Necessary and Proper Clause is not a free-standing grant of power. It merely gives Congress the authority for “carrying into Execution its other enumerated powers.

The administration argues that the individual mandate necessarily flows from the need to cover the massive costs that will be imposed on insurers by other parts of the health-care law. But that is simply a policy rationale masquerading as the carrying into execution of those other provisions. Otherwise, it would mean that the greater the harm caused by a piece of legislation, the more power Congress could claim as “necessary” to fix the self-created harms. This is the epitome of boot-strapping. 

As Members of Congress, you bear an independent responsibility to ensure that the Legislative Branch stays within its constitutionally enumerated powers. To once again summon Madison, because government is not made up of angels, limits on governmental power are absolutely crucial. Because the individual mandate shatters these limits, it should be deemed unconstitutional by both you and the Supreme Court. 

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

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