A month before President Obama signed Obama-care into law, his secretary of health and human services, Kathleen Sebelius, said, “I think the president remains committed to the notion that we have to have a comprehensive approach, because the pieces of the puzzle are too closely tied to one another.” She added, “Pieces of the puzzle are necessarily tied together if you have a comprehensive approach.” You might say that Obama-care aspires to be like a finely tuned watch—though it is of course a clunky, clacking, often imprecise, congressionally assembled, $2 trillion watch. But it’s comprehensive.
Last week, the Supreme Court took up the constitutionality of one of Obamacare’s moving parts. In oral arguments on Tuesday, the central question was whether or not Obamacare’s individual mandate—the requirement that essentially every American purchase government-approved health insurance under penalty of law—exceeds Congress’s power to regulate interstate commerce. As broadly as the Court has construed that power for the past 70 years, it has never before sanctioned, nor has Congress ever before claimed, a power to compel commerce—a power to compel people to buy a product of the federal government’s choosing as a condition of living in the United States.
So one question before the Court is whether to strike down the mandate. But another, addressed in oral arguments on Wednesday, is what on earth the Court should do with the rest of the behemoth legislation if it does strike down the mandate.
This is no simple matter. It’s not immediately apparent what the principle of judicial restraint requires. The Court would have four basic options: strike down as little as possible (just the mandate); strike down as little as possible within reason (just the mandate and the “community rating” and “guaranteed issue” provisions, which even the Obama administration admits wouldn’t work without the mandate); go through Obamacare piece by piece and strike down everything that appears somehow dependent on the mandate; or avoid that quasilegislative role by voiding the whole act. Of these, only the third is clearly inconsistent with judicial restraint, but none of the four is clearly consistent with it.
The justices’ questioning of counsel on this matter was fascinating. Just two minutes into the arguments, Justice Sonia Sotomayor asked: If “adjust[ing] some of the other provisions” were to prove necessary because the individual mandate was declared unconstitutional, “Why shouldn’t we let Congress do that . . . ? What’s wrong with leaving it to—in the hands of the people who should be fixing this, not us?”
Justice Elena Kagan asked, “Is half a loaf better than no loaf?” Answering her own question, she said that “on something like the exchanges, it seems to me a perfect example where half a loaf is better than no loaf. The exchanges will do something. . . . They [just] won’t do everything that Congress envisioned.”
Justice Ruth Bader Ginsburg maintained that “the more conservative approach would be [to] salvage [what’s possible] rather than throwing out everything.”
Paul Clement, representing the 26 states that are challenging Obamacare’s constitutionality, responded that “the provisions that have constitutional difficulties or are tied at the hip to those provisions that have the constitutional difficulty are the very heart of this Act. And . . . if you look at how they are textually interconnected to the exchanges, which are then connected to the tax credits, which are also connected to the employer mandates, which [are] also connected to some of the revenue offsets, which [are] also connected to Medicaid, if you follow that through, what you end up with at the end of that process is just sort of a hollow shell.” He added that Congress would not “have passed that hollow shell without the heart of the Act.”
Chief Justice John Roberts wasn’t so sure. Congress “would have passed parts of the hollow shell,” he said. “I mean, a lot of this is reauthorization of appropriations that have been reauthorized for the previous 5 or 10 years.”
Justice Anthony Kennedy asked, “I need to know what standard you are asking me to apply. Is it whether as a rational matter separate parts could still function, or does it focus on the intent of the Congress?”
Clement argued that the appropriate standard is a blend—“whether the statute can operate in the manner . . . that Congress intended.” He cited another statute that was partially voided by the Court, with the result that “for four decades Congress has tried to fix what’s left of the statute, largely unsuccessfully.”
A bit later, Justice Samuel Alito asked, “What would your fallback position be . . . ?”
Clement responded that the “important” thing is to strike down “the core provisions of the Act, which aren’t just the mandate, community rating, and guaranteed issue, but include the exchanges, the tax credit, [and the Act’s effect on] Medicare and Medicaid.”
After Clement stepped down and Edwin Kneedler had begun to make the case for the government, Justice Antonin Scalia said that “there is no way that this Court’s decision is not going to distort the congressional process. Whether we strike it all down or leave some of it in place, the congressional process will never be the same. One way or another, Congress is going to have to reconsider this, and why isn’t it better to have them reconsider it . . . in toto . . . ?”
Kneedler replied that the Court should strike down as little of the legislation as possible “as a matter of judicial restraint.”
Kennedy responded, “When you say ‘judicial restraint,’ you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if . . . one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider.” Kennedy called this “a more extreme exercise of judicial power . . . than striking the whole” and later “an awesome exercise of judicial power.”
Sotomayor asked Kneedler, “[W]hat should guide the Court’s discretion?”
Kneedler replied that the question “should be resolved by looking at the structure and the text of the Act” and “legislative history,” “to figure out what the text and structure mean . . .”
Scalia interrupted: “Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages? (Laughter.) And do you really expect the Court to do that? Or do you expect us to give this function to our law clerks? (Laughter.) Is this not totally unrealistic, that we’re going to go through this enormous bill item by item and decide each one?”
Kneedler responded, “I think in this case there is an easy answer, and that is . . . that the Act itself creates a sharp dividing line between the minimum coverage provision—the package of—of reforms: the minimum coverage provision along with the guaranteed issue and community rating. That is one package that Congress deemed essential.”
But Roberts asked, “How do you know that? Where is this line? I looked through the whole Act; I didn’t [see it].”
As this sampling of Wednesday’s arguments suggests, there is no clear, unproblematic path for the justices to follow. Whatever course they take (short of upholding the whole act, in which case they will be rightly accused of failing to do their duty), they will be accused of lacking judicial restraint.
But we shouldn’t miss the larger point here. The predicament in which the Court finds itself is plainly a product of President Obama and his party’s preference for massive, unwieldy, impossibly complicated legislation—the kind that you have to pass first to “find out what is in it.” Such legislation, as the oral arguments revealed, does not fit within our system of limited government. That’s because, as Charles Kesler has observed, Obamacare violates the basic notion of law in a free society. Kesler writes, “Sometimes the most obvious derangements of our politics are staring us in the face but we don’t see them”—like “calling this voluminous monstrosity a bill. Can you have a bill, a single law, that is almost 3,000 pages long? In the old days, that would have constituted a whole code of laws.”
In other words, it’s not just Obamacare that must go, but rather the whole liberal and progressive notion of “comprehensive” legislation for a nation of 300 million people. Obamacare is the epitome of that confidence in central planning by experts. Whether the Court strikes down Obamacare, or President Obama is defeated and Obamacare is repealed, or the Court strikes down part of Obamacare and a new president and Congress repeal the rest, last week’s historic hearings have made one thing clearer than ever: Attempts at “comprehensive” legislation compromise the very notion of limited government, in which the people’s representatives try to accomplish attainable goals in a free society. Comprehensive legislation is what happens when you have unlimited government. It is that effort, and the attitude underlying it, that need to be repudiated—by the Court and, more important, by the voters this November.
