Look, I understand that many people think the Affordable Care Act is constitutional. Fine. What really drives me up the wall is the condescension of many on the left about this issue; as if you have to be a Neanderthal to think the individual mandate might be unconstitutional. Seriously, if I have to see the words “clearly constitutional” and “Obamacare” in the same sentence again, I’m going to flip out. Here’s a sampling of the condescension:
Professor Akhil Reed Amar – “How to Defend Obamacare”
David R. Dow – “Impeach the Supreme Court Justices if They Overturn Health-Care Law”
Jonathan Chait – “The Contrived Theory of the Obamacare Lawsuit”
Before I get into the meat of these arguments, I’d like to make a few comments about left’s response in general.
Quit acting so high and mighty
Just stop trying to tell us how obvious and clear it is that the Affordable Care Act is constitutional. I can’t take anyone seriously when they do this – especially when they’re the same folks explaining how the highly distinguished and discerning conservative judges are just partisan hacks. I especially love how Kennedy is treated – if he ends up overturning, he’s clearly thinking politically. Yet if he doesn’t, he retains his position as the reasonable if unpredictable moderate conservative on the court.
Back to the initial point: you simply can’t argue for ACA by treating us like idiots. When we have a distinguished Georgetown Law professor spearheading the case against Obamacare, along with dozens of state Attorney Generals and qualified lawyers, the idea that this is a slam-dunk for the White House is just annoying. The challenge to Obamacare is a serious one, and it deserves serious attention.
Try thinking historically
Precedent is not rock solid. It gives a pretty clear indication of what is constitutional, but the bedrock test is the constitution itself, not what we learn from cases. The Supreme Court – shocker – is allowed to overturn precedent.
Do you not understand what federalism is?
Most of the arguments I’ve seen tend to resemble “but… sick people!” You’d think Republicans are digging graves for the poor folk in their spare time. But arguing that the mandate is unconstitutional is not arguing that we should do nothing about the health care problem. In fact, most Republicans who’ve spent time thinking about this issue will tell you that Romneycare is much easier to defend constitutionally than Obamacare. This seems to escape the left entirely. Obviously, if Massachusetts did it, Congress can do it! Right?
No. I understand that the 10th amendment is a dirty, awful thing for many folks. But, sorry, it exists. It’s painfully obvious that Romneycare and Obamacare are not the same thing, because Congress is limited in a way that the states are not (we’ll get to regulating commerce later, don’t worry).
The great thing about federalism is that it lets us experiment. The United States is huge. Obamacare created a United States-sized bureaucracy. So what happens if it sucks? Well, too bad, you’re stuck with it. What if Romneycare sucks? Well, it’ll be easier to change for one thing – but even more important, the other 49 states can look at Massachusetts and decide for themselves whether they want a similar system.
Anyway, the central point: Republicans don’t want people to go without insurance. We don’t get excited thinking about cancer patients who can’t afford their treatment or accident victims drowning in bills. But these tragic stories are not an argument of constitutionality.
I know you still aren’t buying this, so let’s just go point by point
Let’s look in depth at Professor Amar’s piece in Slate. Below are some points generally made by the condescending left, and Amar’s specific comments on these points.
- The Affordable Care Act is very clearly an exercise of Congress’ power to regulate commerce
The Constitution expressly gives Congress the power to “Regulate commerce . . . among the several states.” Here, we have a genuine regulation—both the micro-mandate/penalty/tax and the larger regulatory regime of which it is an integral part. We have commerce under any reading of the word.
Ah, those words. I’m not going to get into a discussion about what SCOTUS cases have said about the terms commerce and regulation. I’m obviously not a constitutional scholar. In fact, I’m sure with the way precedent has led us, that Amar is in a sense right about these terms. But again, precedent isn’t God.
As it is understood now, commerce is basically any economic activity that takes place in the United States. Because of the interdependence of the states, this will usually satisfy the ‘among the several states’ issue. But does economic interdependence really mean that we should shift power from the states to the federal government? I’m not sure, but I don’t think the answer is so obvious.
What about the term regulate, with respect to commerce? Precedent tells us that Congress can do pretty much whatever the heck it wants to regulate commerce. But the argument has been made, and convincingly I think, that this was originally meant simply to prevent trade barriers from being established between the states. This actually makes pretty good sense. But even if you think that’s far too conservative a reading, can’t we agree that it is substantially different from what the commerce clause is said to allow today?
Just for giggles, let’s look at the commerce clause:
The Congress shall have Power… To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.
Is it not obvious that ‘commerce’ with foreign nations is here defined the same as commerce that goes on among the several states? Yet when you think of Congress regulating commerce with other nations, what comes to mind is tariffs and quotas. Why should it be so much different when applied within the United States?
Again, my point is not to convince you that ACA is unconstitutional (though I’d love that). My point is to convince you that the case for it is not a slam dunk.
- The ACA is constitutional because we are obligated to provide for those who can’t afford health care
One of the critiques of Obamacare mandate is that it responds to a problem created by the federal government in the first place, which mandates that emergency room care cannot be denied. The conservative argument is that an action cannot be made constitutional simply because it responds to a National Problem, particularly if the problem is created by the government in the first place. Amar responds with a platitude about the “obligation to care for the urgently sick” which “is ultimately rooted in morality and centuries of tradition.”
First, this can be handled by the states, so it’s no excuse to violate the constitution. Second, the responsibility to care for the sick is one of society, not necessarily of government – especially the federal government. And if we do hand it to government, let local and state governments decide how to care for their sick and poor – and yes, to the strangers who come to them sick and poor.
- Mandates aren’t unprecedented, look at that one law from 1792!
Apparently, conscription into a militia is just like being told to purchase health insurance. Or so many of those on the left would tell you. They have seized on the Militia Act of 1792, which Amar explains:
The Militia Act of 1792 had a similar mandate, obliging Founding-era Americans to privately procure muskets, ammo, pouches, and so on. George Washington signed onto that law. And no one at the time said that mandates such as this were somehow intrinsically improper regulatory tools.
First of all, this mandate didn’t simply tell people to buy guns for teh lols. It was a conscription act. As in, it organized men into militias, and required those men to purchase weapons. Different, I would say, then telling people to buy a product or face a penalty simply because you can afford to. Amar says that since this is a mandate under the federal government’s power to regulate the militias, a mandate under the federal government’s power to regulate commerce is clearly fair. I’m going to leave that argument alone – but i’m not okay with comparing the two mandates.
Congress is given the power to “provide for organizing, arming, and disciplining, the militia.” The Militia Act very simply and directly armed the militias by requiring the purchase of weapons by conscripted men. Can we really compare this to the ACA mandate? Are all mandates equal? I think just one key distinction is that the Militia Act mandate applied to a specific subset of the population.
Another distinction is that this mandate was not an exercise of a general regulatory responsibility of Congress over the militia; rather, it fulfilled the very specific responsibility to ‘arm’ the militia. Nowhere is Congress specifically authorized to ‘arm’ (if you will) the citizenry with health care. Of course, Amar says Congress can mandate anywhere if it can mandate somewhere; still, I find this distinction at least thought provoking.
- It’s just the same as if Congress raised taxes and bought health insurance for everyone
Amar says,
If government can tax me, and use the money to buy a musket/insurance policy with my name on it, and then give me the musket/insurance policy, then government can for the very same reason oblige me to procure the musket/insurance policy myself.
Later he continues:
If government can take my money and pay it to Detroit, there is no liberty difference than if government tells me directly to buy from Detroit.
Honestly, the logic is difficult at first glance to argue with. It’s true that Congress already forces us to buy retirement insurance (Social Security) and yes, even health insurance (Medicare). Let’s put aside for the moment the legitimate constitutional concerns raised by these programs.
First, I think we can all agree that there is some Constitutional limit to Congress’ ability to tax and spend. If that were not true, then Congress could constitutionally confiscate virtually all of our income, and distribute it back to the citizens in the form of goods and services. Clearly this seems absurd, but those on the left would rather talk about how dumb such a law would be than to discuss its constitutionality.
Furthermore, the left seems to be arguing something truly dangerous: if it is necessary (‘proper’ tends to be forgotten) for regulating commerce, there is no limit to what Congress can and cannot purchase, and thus there is no limit to what Congress can make me purchase.
Let’s repeat: according to Amar, there is no difference between the government purchasing something with my tax dollars and the government forcing me to purchase something.
Again, it sounds logical. But can’t you feel that there is in fact a difference? When I pay my taxes, I expect Congress to spend my money in a variety of ways. But I don’t expect Congress to punish me if I don’t spend my own money a certain way.
Perhaps the difference is difficult to identify, but it’s not difficult to feel. At a different time I’d like to explore this issue more – but again, the purpose of this post is simply to show that this isn’t an open and shut case.
- Health care is totally different, because sick people
If you think that “healthcare is different” is a good constitutionally limiting principle, please watch this video. People argue that health care is unique, to differentiate it from broccoli, or cell phones, or any other thing which Congress might someday mandate that we buy. Amar argues:
There is no real, substantial, honest-to-goodness interstate spillover/externality problem with broccoli that I see at the moment.
But all this argument seems to do is to prove that health care can be regulated under the commerce clause (which should be pretty obvious according to precedent). It in no way deals with the issue of whether the mandate is a legitimate form of regulation.
Perhaps the argument even takes the next step and claims that the uniqueness of health care makes the mandate a necessary tool. But what about proper? This argument does nothing to answer that question.
