Bench Memos

The Peculiar Circumstances of Obamacare

The great chief justice John Marshall once wrote, “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.” Marshall, who joined James Madison as a delegate to the Virginia ratifying convention in 1788, wrote these words in defense of his 1819 opinion in McCulloch v. Maryland — the seminal case that was invoked on multiple occasions during yesterday’s arguments on the constitutionality of Obamacare’s lynchpin individual mandate.

At one point, Justice Stephen Breyer (who may well have the broadest conception of the Commerce Clause power of anyone alive), asserted that “the national bank . . . was created out of nothing, to create other commerce out of nothing.” Paul Clement, representing the 26 states who filed suit against Obamacare, replied, “What, of course, the Court didn’t say [in McCulloch] . . . is . . . we are not just going to have the bank . . . we are going to force the citizenry to put all of their money in the bank.” Clement added, “I think the framers would have identified the difference between those two scenarios, and I don’t think that the great chief justice would have said that forcing people to put their deposits in the Bank of the United States was necessary and proper.”

It would be hard for anyone who listened to yesterday’s arguments to conclude that the Obama administration had a particularly good day. The government’s arguments sounded as if Congress and the administration had paid about as much attention to the constitutionality of Obamacare in the process of drafting it as Nancy Pelosi suggested that they had. (“Are you serious . . . ?”)

When asked repeatedly to provide a limiting principle — something that could keep the alleged power to force Americans to buy government-approved health insurance from becoming a power to force them to buy food, cars (Volts?), or anything else of the government’s liking — the best that the government could come up with was the claim (restated in various ways) that the health-care market is “unique.” This, of course, presupposes that a market of sufficient uniqueness could yield a previously undiscovered (but wholly legitimate) power to compel commerce, rather than merely to regulate it — a power that (in an apparent display of extraordinary restraint) Congress somehow didn’t exercise in its first 220 years.

But is the health-care market really so unique? The government argued that it’s a market that no one can keep from entering (as if the same couldn’t be said for the food market — and of course eating poorly can lead to bad health). In that spirit, Justice Breyer asked, “The question is when you are born, and you don’t have insurance, and you will in fact get sick, and you will in fact impose costs, have you perhaps involuntarily — perhaps simply because you are a human being — entered this particular market, which is a market for health care?” Michael Carvin, counsel for the National Federation of Independent Business, aptly replied, “If being born is entering the market, then I can’t think of a more plenary power.”

Also of interest was how often the arguments in support of the individual mandate’s constitutionality focused on the cost to society of having the uninsured otherwise be covered in emergency rooms (a policy argument, not a constitutional one). But what about the cost to society of people being allowed to sign up for “insurance” after they’re already sick or injured, and not having to pay a higher premium as a result? That’s something Obamacare requires. In truth, the individual mandate is a necessary component of making Obamacare work (to any degree at all), not because the mandate would shield society from emergency-room costs, but because it would shield society from the costs of Obamacare’s further mandate that insurers cover all comers, regardless of preexisting conditions, without charging them higher premiums. The only way to make up for that added expense is to force the young and healthy, who choose not to buy insurance, to buy insurance under penalty of law.

As weak as the government’s arguments are in this case, no one can know how the Court will rule. But unless the Court throws Obamacare out in its entirety — a best-case scenario that’s presumably among the least likely potential outcomes — what we can know is that the fate of Obamacare will ultimately be decided not by the judiciary, but by the political process. If Americans want to repeal Obamacare, they need to elect a president, a House, and a Senate that share that goal — and who are determined to achieve it.

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