On Obamacare, Let Justice Prevail

The media hasn’t been doing well lately. Try as they might to tie the goings on in Egypt to a Obama foreign policy success, they failed. However, the events in Egypt did take the heat off of the administration for judge Vinson’s recent ruling that Obamacare is unconstitutional in its entirety. It’s time to revisit this ruling and where this case is headed.

Where the U.S. Constitution is concerned, there are two views. One is that it serves as our blueprint for governance as intended by our founding fathers who wrote it. The other point of view is that the constitution is old, outdated, and is useful only as a guideline to be adjusted up or down as needed.

President Obama holds the second view. In this radio interview, speaking to the issue of civil rights and the Warren court, then Senator Obama said . . .

The Warren court wasn’t that radical.  It didn’t break free from the essential constraints that were placed by the founding fathers in the constitution. Generally, the constitution is a charter of negative liberties. . . . It doesn’t say what the federal government must do on your behalf.

And that is on purpose. Anything else is left up to the states. In light of his attitude of the constitution, it begs the question that has yet to be asked of the president. What does it mean to you ‘to protect and defend the Constitution of the United States?’

This loose, if not contemptuous, attitude of the constitution is more common among Liberals, Progressives, and the political Left. It is also the belief of another constitutional lawyer Lawrence H. Tribe of Gore v Bush fame. Tribe’s book, The Invisible Constitution, purports that

what is not written in the Constitution plays a key role in its interpretation. Indeed some of the most contentious Constitutional debates of our time hinge on the extent to which it can admit of divergent readings.

Well DUH! That’s why we have a Supreme Court.

Tribe wrote an opinion piece about Obamacare last week in the New York Times which is found below in its entirety, with comments.

On Health Care, Justice Will Prevail


Cambridge, Mass.

THE lawsuits challenging the individual mandate in the health care law, including one in which a federal district judge last week called the law unconstitutional, will ultimately be resolved by the Supreme Court, and pundits are already making bets on how the justices will vote.

But the predictions of a partisan 5-4 split rest on a misunderstanding of the court and the Constitution. The constitutionality of the health care law is not one of those novel, one-off issues, like the outcome of the 2000 presidential election, that have at times created the impression of Supreme Court justices as political actors rather than legal analysts.

{You lost that one Larry. Sorry.}

Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states {where?} that have significant effects on interstate markets. By that standard, {new standard} this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate? {Judge Vinson is dealing with the part that regulates people Larry, not the insurance industry.}

Many new provisions in the law, like the ban on discrimination based on pre-existing conditions, are also undeniably permissible. But they would be undermined if healthy or risk-prone individuals could opt out of insurance, which could lead to unacceptably high premiums for those remaining in the pool. For the system to work, all individuals — healthy and sick, risk-prone and risk-averse — must participate to the extent of their economic ability. {Yeah right. So kill all the hundreds of waivers, mostly to unions.}

In this regard, the health care law is little different from Social Security. The court unanimously recognized in 1982 that it would be “difficult, if not impossible” to maintain the financial soundness of a Social Security system from which people could opt out. {Make that ‘impossible,’ and that’s not because of the system, it’s because congress has been spending it on entitlement programs for the last 50 years.} The same analysis holds here: by restricting certain economic choices of individuals, {it is ‘requiring’ choices, not restricting choices} we ensure the vitality of a regulatory regime clearly within Congress’s power to establish. {clear in your mind perhaps}

The justices aren’t likely to be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic “activity,” not “inactivity,” like the decision not to purchase insurance. This distinction is illusory. Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. {And under Obamacare, they can buy their insurance after they get sick and be covered. Effectively killing private sector health insurance.} This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.

Even if the interstate commerce clause did not suffice to uphold mandatory insurance, the even broader power of Congress to impose taxes would surely do so. After all, the individual mandate is enforced through taxation, even if supporters have been reluctant to point that out. {You mean like proponents were reluctant to call it a tax when trying to sell it to the American people. They said it was not a tax, but a penalty. Only since going to court are they now calling it a tax. Can you say Bait and Switch?}

Given the clear case for the law’s constitutionality {in your mind}, it’s distressing that many assume its fate will be decided by a partisan, closely divided Supreme Court. {Like Bush v Gore?} Justice Antonin Scalia, whom some count as a certain vote against the law, upheld in 2005 Congress’s power to punish those growing marijuana for their own medical use; a ban on homegrown marijuana, he reasoned, might be deemed “necessary and proper” to effectively enforce broader federal regulation of nationwide drug markets. To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.

Justice Anthony Kennedy, whom many unfairly caricature as the “swing vote,” deserves better as well. Yes, his opinion in the 5-4 decision invalidating the federal ban on possession of guns near schools is frequently cited by opponents of the health care law. But that decision in 1995 drew a bright line between commercial choices, all of which Congress has presumptive power to regulate, and conduct like gun possession that is not in itself “commercial” or “economic,” however likely it might be to set off a cascade of economic effects. The decision about how to pay for health care is a quintessentially commercial choice in itself, not merely a decision that might have economic consequences. {And not one for the federal government to make.}

Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law. Those judges made the confused assertion that what is at stake here is a matter of personal liberty — the right not to purchase what one wishes not to purchase — rather than the reach of national legislative power in a world where no man is an island. {The confusion lies in your understanding of the federal government’s enumerated powers.}

It would be asking a lot to expect conservative jurists to smuggle into the commerce clause an unenumerated federal “right” to opt out of the social contract. If Justice Clarence Thomas can be counted a nearly sure vote against the health care law, the only reason is that he alone has publicly and repeatedly stressed his principled disagreement with the whole line of post-1937 cases that interpret Congress’s commerce power broadly. {And correctly so, imho.}

There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is — a political objection in legal garb. {So the setup is, if you lose this one, it will have been a political rather than constitutional. Just like Gore v Bush. It’s like being a sore loser in advance.}

Laurence H. Tribe, a professor at Harvard Law School, is the author of “The Invisible Constitution.”

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