No matter how the Supreme Court rules on Obamacare after this week’s hearings, the heated political rhetoric concerning the constitutionality of President Obama’s signature legislation is sure to intensify. Below are the three most bogus claims often recited by political hacks defending the constitutionality of Obamacare:
1. “If the government can mandate auto-insurance, it can mandate health insurance.”
The most obvious problem with this is that the federal government doesn’t mandate auto insurance, state governments do. As long as a state’s laws and constitution allow for health insurance mandates, they are free to mandate to their heart’s content, a fact Mitt Romney has been trying to explain to anyone who will listen.
Unlike the states, the Federal government’s powers are limited by a set list in the Constitution. Congress explicitly relied on Article I of the Constitution – the commerce clause – to justify regulating health care insurance when it enacted the health care reform law.
The problem with using the Commerce Clause to justify Obamacare is that Congress took the extraordinary step of regulating the “inactivity” of Americans. However, current Supreme Court precedent only allows Congress to regulate “economic activity” (i.e. people doing something) under the Commerce Clause. For the first time ever, Congress is claiming that your mere existence is enough to trigger its power to regulate anything you do – or don’t do – under the Commerce Clause.
If the Court adopts this argument, there is no reason Congress couldn’t mandate that Americans buy healthy food, join a gym, wear sunscreen – the possibilities are endless. Even lower court judges who upheld Obamacare have expressed concern at the lack of a limit to Congress’ power under this new, expanded definition of “commerce.”
2. “Challenges to Obamacare are outside of mainstream judicial opinion.”
This was the Obama administration’s response when a Federal District Judge ruled the individual mandate unconstitutional back in early 2011. The obvious counter-punch, is that the Supreme Court has NEVER found that Congress’ Commerce Clause power stretches as far as Obamacare requires.
The “extremism” label gets tossed around a lot these days, but some might argue that requiring unprecedented health insurance mandates, as part of a trillion dollar healthcare law, passed against public will, in the middle of a recession…is outside mainstream definitions of reasonable behavior.
3. “Judges who find the individual mandate unconstitutional are hypocritical judicial activists.”
Typically, conservatives lodge the judicial activism charge when unelected judges interpret the constitution as a “living” document, creating new Constitutional rules without any input from the normal democratic process, not the other way around.
The reflex to characterize any decision overturning the individual mandate as “judicial activism” is misguided. In fact, the individual mandate is almost tailor-made for Constitutional review. The law is hinged on the Constitution granting Congress more power than it has ever exercised previously. If the judiciary was intended to be no more than a rubber stamp for Congress on such matters, there wouldn’t be much point in making it a separate, co-equal branch of the Federal government.
As to the implied charge that overturning Obamacare would be usurping the democratic process, a majority of Americans have favored repeal of Obamacare in almost every poll taken since it was passed. Give me a break! The democracy has voiced its preference, and it does not support Obamacare.
