March 19th, 2012

The Supremes and the individual mandate at the federal level

Adam J. White does a good job of explaining why the Obamacare individual mandate at the federal level is really and literally “unprecedented.” It’s a long article, but well worth reading if you want to understand the legal issues facing the Supreme Court when it hears National Federation of Independent Business v. Sebelius.

They’re large; really, really large. At issue isn’t just Obamacare, either—it’s the slow and insidious expansion of the federal government’s power under the Commerce Clause which has been going on for much of the twentieth and twenty-first centuries:

Neither the federal government nor the numerous lower courts, the states conclude, “have identified a single other federal law throughout our Nation’s entire history that simply compels individuals to enter into commerce.” That dearth of precedents is all the more instructive, they argue, because “Congress surely has not lacked incentives to exercise such a ‘highly attractive power.’ ” In two centuries, Congress never lacked the creativity to fashion indirect ways to achieve its preferred ends​—​think of the perennial threat to withhold highway funds as a way to cajole the states into forcing drivers to wear seatbelts​—​but it never claimed for itself the power to achieve its economic aims through direct commands to the citizenry at large.

But the Commerce Clause, as important as it is, is only the beginning. There’s also this:

And even if the individual mandate does not fit squarely within the Commerce Clause, the government further argues, that mandate fits within the powers granted by the Necessary and Proper Clause​—​that is, the Constitution’s ancillary provision authorizing Congress to “make all Laws which shall be necessary and proper for carrying into Execution” Congress’s other enumerated powers…

The states challenging Obamacare respond with several arguments that the mandate is neither “necessary” nor “proper.” Ultimately the most powerful of these is the slippery slope: The government’s argument offers no legal limits to prevent the imposition of similar mandates in other markets displaying similar characteristics. Lacking any “limiting principle,” the government’s theory of the power to mandate the purchase of health insurance “obliterates any meaningful boundaries on Congress’ limited and enumerated powers,” a theory that “cannot be squared with the Constitution.”

Then there’s the tax question:

If the Supreme Court finds that the individual mandate is justified under neither the Commerce Clause nor the Necessary and Proper Clause, then the government has one remaining defense: its constitutional power to “lay and collect Taxes, Duties, Imposts, and Excises.”

White goes on to explain several reasons why it’s not a tax—and the reason isn’t just because Obama and the Democrats said it wasn’t one when they passed it, and are now claiming for the sake of the lawsuit that it is.

But even if the Court decides in favor of the plaintiffs and strikes the mandate down, there’s the question of remedy:

Should only the individual mandate be struck down, or should the Court strike down Obama-care in its entirety? To borrow the technical term, is the individual mandate “severable” from the rest of Obama-care?

The lower courts that ruled variously on these issues were hampered by the fact that the case truly was “unprecedented.” Now the Supreme Court, which can set precedent for the rest, will need to do so. This not only has the potential to be one of the biggest cases in recent memory; it also points out one of the reasons this coming election is so important: whoever becomes the next president will probably get to appoint a number of new Supreme Court Justices, who will serve for life.

[NOTE: Note, also, the emphasis on the federal nature of the individual mandate in the case of Obamacare. It is this federal nature that makes the challenge powerful. There are no such prohibitions on states, although you may indeed find an individual mandate at the state level to be undesirable, and would like to see it struck down. But, as I’ve said many times before, the individual mandate at the state level used to be considered a conservatively-approved approach to health care insurance, and a way to keep insurance both affordable and in the hands of private insurers as an alternative to a public option. Obamacare has caused many conservatives who previously supported and recommended state mandates to reconsider them and view them more negatively, post-Obamacare. But legally there is a huge difference, which can be seen in the NFIB v. Sebelius case pending.]

20 Responses to “The Supremes and the individual mandate at the federal level”

  1. Paul in Boston Says:

    It’s time to rule the Commerce Clause unconstitutional. How else are we going to get out from under massive, all intrusive government?

  2. Steve Says:

    Individual mandates at the state level might be considered a conservative approach to some ‘conservatives’ but not to ones promoting individual freedom and responsibility (ie, small government types). We have a large and overbearing government at the state and federal levels because our political class (both parties) favors giving power to the state.

  3. Ike Says:

    The notion of fundamentally unlimited power at the State level rises from a wrong notion about the nature of State government, that being that they are “sovereign” and therefore possess such authority inherently. Very concisely: States are not “the self-sufficient source of political authority” – i.e. ‘sovereign’ – which would permit an argument of inherent powers in State governments. How so? Each one must be created by a charter or constitution of government, which is written and ratified by people who in point of fact are “the self-sufficient source of political authority”. Thus, similar limitations apply to State powers as to the Federal, even in the absence of an analog of the Tenth Amendment in any State constitution, because only those powers which the people possess – important point! – and which were specifically delegated may be exercised by any government. Might does not make right; the ends do no justify the means. In very shorthand form, this is the answer to the claim of State power being a “conservative” answer.

  4. neo-neocon Says:

    Steve and Ike: among conservatives who originally supported state individual mandates were Newt Gingrich and the Heritage Foundation.

    And Ike: no, states do not have the same limitations as the federal government. However, state powers are not unlimited, either. Where to draw the line is a knotty question, but the US Constitution is not a guide except where it explicitly applies to states, or where rights have been incorporated (see this for an explanation of the latter).

  5. momo Says:

    I think the House Republicans should add a mandate to each and every bill that goes through there.
    In order to show the silliness of “The Individual Mandate” the should pick a product Americas are required to buy at random from some government chart of products made (maybe the basket of goods that make up the CPI inflation number).
    I bet the Supremes would have a slightly different view of the mandate if by the time it came before them they were also required to buy Chevy Volts, a dozen fountain pens, and a 36 pack of condoms every year (regardless of age or sexual activity).

  6. Mr. Frank Says:

    It seems to me that if the individual mandate is ruled constitutional, there would be no limit to what the individual could be made to buy. Arguments could be made for life insurance or savings bonds. If the dairy industry were hurting, you could be forced to buy milk. The Wickard v. Filburn Supreme Court case already has stretched the Commerce Clause beyond all reasonableness. In 1942 the Court found that an Ohio farmer who was growing wheat for his own use was participating in interstate commerce because if he did not grow the wheat he would have to buy it on the market.

  7. George Says:

    A question for Romney: If Obamacare is upheld, will you as president work to repeal it or consider the matter settled?

  8. neo-neocon Says:

    George: Romney has explicitly pledged over and over again to work for repeal of the bill.

  9. Don Says:

    Paul in Boston Says:

    March 19th, 2012 at 4:42 pm
    It’s time to rule the Commerce Clause unconstitutional. How else are we going to get out from under massive, all intrusive government?

    There isn’t anything wrong with the commerce clause per se; the problem is that the courts have interpreted it to mean: “the feds can regulate anything that EFFECTS commerce among the states”. It actually only gives them power to regulate actual commerce, the word “effect” isn’t there.

  10. holmes Says:

    Why did we need an amendment to ban alcohol, but only a statute to ban certain drugs? Our society has been inured to this erosion of government limitation. This might be the last gasp, as Mark Steyn writes, as it will change forever our relationship to the state. I see an immature society who is uncomfortable with freedom and relishes the (mostly false) security the state provides. The outcome, or perceived outcome, is the important thing now.

  11. Steve Says:

    neo, Newt and Romney have also walked back their previous support for global warming hooey. I think their natural instinct is to support a bigger role for government. They are part of the problem not part of the solution. Santorum too. We have a triumvirate of mediocrity to choose from.

  12. neo-neocon Says:

    Steve: as a person who has changed politically, I probably have more tolerance—and more respect—than you do for candidates changing their minds on a subject. Yes, of course, sometimes they just do it as weathervanes to pander to the blowing winds of the moment. But sometimes we learn new facts and gain new insights and change our opinions because of those facts and insights. I have never really understood why “flip-flopper” is a charge leveled at candidates every time they change their minds. Some mind changes are meaningless flip flops, and some are not.

    In the case of global warming, I’d have to have the old quotes and the new quotes side by side, and not just the single sentence quotes either—the context and reasoning around them. Were the candidates speaking of global warming in one instance and AGW (anthropocentric global warming) in the other, for instance? There’s quite a difference. Plus, when were the first quotes given and when the second? In the last couple of years, a lot of people who used to be convinced of AGW have become much less convinced—I, for example, am one of them—because of new information.

    Never changing your mind is not necessarily a good thing. It can be an example of a stubborn refusal to integrate new information.

  13. Don Carlos Says:

    The coming Gotterdammerung (excuse umlaut absence) is the inevitable result of Constitutional flaws: Supremes, the ultimate arbitrators, endure for life; prior SCOTUS errors/wrongs are essentially never undone (Wickard, a patently indefensible ruling, is still with us 70 years later), and there basically are no realistic mechanisms for enforcement of even brazen Constitutional violations. Sure, there’s impeachment, but how often and how well has that worked for us? The last Federal District judge removed by impeachment for flagrant corruption on the bench became and remains a Dem congressman. What happens if Obama and the Senate Dems just ignore an adverse SCOTUS ruling?
    The fate of >300 million citizen lives depend on 9 life-tenured judges, with the so-called DOJ in the malevolent Holder’s hands? Insane. A quite forseeable disaster looms, and the American Republic will end. I am not at all sure there will come a righteous uprising, however, so Gotterdammerung may not be applicable.

  14. Steve Says:

    neo, if Newt and Romney were young and inexperienced I could see them changing their minds on topics that involve 1/7 of the US economy and an attempt to impose world government. They are old enough to know better though. Here is a simple test to gauge the wisdom (not knowledge but judgment) of a conservative candidate: are they intrinsically skeptical of solutions that call for a greater role of government? Do they smell a rat? If they lead with the politically correct answer, guess what they are old, dumb and not conservative.

  15. neo-neocon Says:

    Steve: but I’m talking about AGW. Changed opinions on that probably have nothing to do with age or dumbness, and everything to do with new information. Many people who believed it was true a few years ago are having serious doubts now.

  16. Steve Says:

    Didn’t the fact that all the usual suspects were behind AGW tip you off that this might be the latest in the series of scares by the malthusian luddite left? Again, if Newt and Romney were neophytes I would understand that they might take things on face value but they lived through peak oil, population explosion, etc. How could they not see that this was yet another attempt to scare the masses into submission? My view is that NE breeds idiots for politicians and that DC corrupts anyone who goes there (insider trading).

  17. Beverly Says:

    FrontPage magazine has a hair-raising article about Obama’s drastic expansion of the Defense Powers Act of 1950 —

    “The new executive order gives the president and his executive branch agency heads far more power than was contemplated by Congress in the Defense Production Act (“Act”).”

    They’re pointing out some major things that the WND overlooked in its article downplaying the threat. Check it out: if FP is right, we’re in deep trouble.

  18. Steve Says:

    P.S. I know Paul Tsongas is one of the rare exceptions.

  19. Ymarsakar Says:

    Totalitarian regimes are very creative when it comes to justifying their own aristocratic fetishes.

  20. Ymarsakar Says:

    Beverly, as I said before about that issue, everything the Left does is a sleeper weapon designed for Final Hour. People can discount and call it harmless, but Bush and Reagan aren’t in power, while the Left is. It doesn’t matter what Bush and Reagan did with those Executive Orders. Give Bush Fast and Furious, and what did he do with it? Give evil bureaucrats Fast and Furious and what did they do with it? One had some benefit to law and order, while the other one…

    This comparison is something Americans continue to refuse to accept, because it would force them to see the truth of the Left. And the truth of their own selves.

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.

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