Obamacare in the Courts

On Thursday, in Detroit, a federal district judge named George Caram Steeh ruled Obamacare constitutional. On Friday, Mike Pence, a Republican Congressman from Indiana, expressed his confidence that the Supreme Court will declare key sections of the bill unconstitutional.

I believe that Pence is right – and for three reasons: one principled, one personal, and one practical and political. The first is easy to grasp.

At stake, Pence asserts, is “whether or not the Constitution of the United States permits the government to order the American people to purchase goods or services, whether they want them or need them or not.” With this description of what is at issue, Judge Steeh, who was appointed to the court by William Jefferson Clinton, is in wholehearted agreement. As he puts it in his ruling,

The decision whether to purchase insurance or to attempt to pay for health care out of pocket, is plainly economic. These decisions, viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers, and the insured population who ultimately pay for the care provided to those who go without insurance.

It is his view that – since our “decisions” to buy or not buy insurance have an impact on the market – the federal government can make these decisions for us.

The precedents cited by Judge Steeh are, in fact, embarrassing and notorious. They involve rulings in which the Supreme Court sanctioned the legitimacy, under the Commerce Clause, of the federal government’s policing or even prohibiting the growth for one’s own use of wheat, in one case, and of marijuana, in another. The Court justified these rulings on the preposterous grounds that growing either item for one’s own private consumption might “forestall resort to the market” and thereby seriously affect interstate commerce. For a long time now, it has been the law of the land, as interpreted by the Supreme Court, that – if Congress wanted to interfere with your growing tomatoes in your own background for inclusion in the salads you put on your own table – it would be within its rights.

That these precedents are inconsistent with the principles of federalism and limited government should be obvious to anyone. They have as their consequence an erasure of the distinction – presumed by those who framed and ratified the Constitution – between commerce within a state and commerce that takes place across state lines, and they extend the regulatory power of the federal government to cases where no commerce of any kind takes place at all.

That the Court ought to overturn these precedents goes without saying, but this is probably too much to expect on the present occasion. Fortunately, however, there are other grounds for declaring Obamacare unconstitutional, and Judge Steeh inadvertently highlights what they are. For what is at stake, as he acknowledges, has to do with “decisions” to buy or not buy health insurance and not with an “activity” putatively having some sort of impact on interstate commerce, however minute. It is bad enough that Congress can prohibit us from having vegetable gardens; it would be far, far worse if our masters in Washington could force us to grow vegetables in our backyards. If they can force us to buy insurance, they can force us to buy anything. The money we earn will no longer be ours; it will be theirs to have us spend as they think we should. This is an instance of what I described more than a year ago in my very first blogpost as Obama’s Tyrannical Ambition, and I am persuaded that the Supreme Court will recognize its despotic implications.

My second reason for suspecting that the Supreme Court will declare Obamacare unconstitutional has to do with personalities. Barack Obama is the most self-righteous President we have ever had. In this department, he puts even Woodrow Wilson to shame – and that is saying a lot. President Obama rarely fails to hector those to whom he speaks, and he subjected the Justices of the Supreme Court to abuse and ridicule in public on an occasion last January when they were a captive audience in attendance at his address on the State of the Union. I thought at the time that he would live to regret this egregious act of presumption and bad manners, and I still believe that he will. Justice Anthony Kennedy, the swing vote on the Supreme Court, was present on this occasion, and he was not amused. I suspect that he would relish having the opportunity to teach this President and the Congressmen who gave him a standing ovation when he denounced the Court a lesson about the limits of their authority and the need to respect the separation of powers.

Of course, if Obamacare were wildly popular, if it had been passed by an overwhelming bipartisan majority, the Supreme Court might defer to the other branches of the government – as, in time, it reluctantly did in the days when Franklin Delano Roosevelt was riding high. But Obamacare is regarded by the majority of Americans with loathing. No Republicans in either the House or the Senate voted for it, and it was shoved through – after the election of Scott Brown to the Senate from Massachusetts – in a way that defied the rules of decorum that had hitherto governed legislative conduct: which brings me to my third reason for suspecting that the Court will disembowel the law.

In the United States, there is one rule that trumps all of the other jurisprudential principles elaborated since the establishment of the federal government in 1788, and no one stated it with greater eloquence than the Chicago newspaper columnist Finley Peter Dunne. “No matter whether the country follows the flag or not,” he had Mr. Dooley tell his friend Hinnissy, “the Supreme Court follows the election returns.” If the Republicans run against Obamacare, as they are doing, and if they trounce the Democrats in November, as they surely will, you can bet that, on this particular question, the Supreme Court will fall in line.