Imagine America faces a crisis of malnutrition. Millions of Americans are consuming too many processed foods and too few fresh foods. To stem the crisis, Congress enacts a comprehensive food reform law, requiring food sellers to meet minimum nutritional standards and provide access to healthy foods. The new law makes food more expensive, and many Americans opt out of the food market altogether, choosing to grow their own food instead. The food industry teeters on the verge of collapse. To prevent this collapse, Congress passes another law mandating that individuals buy a minimum amount of healthy food each month. Individuals who fail to buy the minimum amount face a stiff penalty.
Can Congress do this? Does the Constitution give the federal government power to make you buy healthy food? These questions are the heart of the Obamacare lawsuits–merely substitute “health insurance” for “healthy food.” If Obamacare’s health insurance mandate is upheld–as the federal Sixth U.S. Circuit Court of Appeals ruled in late June–individual liberty is in serious long-term jeopardy.
The rationale behind forcing individuals to buy health insurance versus healthy food is indistinguishable. The Obama Administration contends that, if people aren’t forced to buy health insurance, the market will collapse. Because Obamacare made health insurance more expensive–doing things like forbidding insurers from excluding those with preexisting conditions–many Americans, particularly healthy young people, would have decided to stay out of the health insurance market altogether and “self-insure.” Government must force these people to buy health insurance, the argument goes, to capture their premium dollars and help subsidize older, sicker people, keeping the overall market affordable and viable.
No matter how ardently you believe the health care system is flawed, or how angry you are at insurance companies, you must resist the temptation to let these considerations distract you from the broader and critically important constitutional choice posed by the health reform litigation. At stake are two related constitutional concepts: “federalism” and “limited and enumerated powers.” These concepts aren’t just quaint, outdated relics. They aren’t about “states’ rights.” They are both designed to protect individual liberty by restraining government’s innate tendency toward ever-expanding power.
The U.S. Supreme Court recognized the critical relationship between individual liberty and federalism and limited powers only a few weeks ago in Bond v. United States. In Bond, a criminal defendant claimed that the federal law she was charged with violating was unconstitutional because Congress didn’t have the power to enact it. If Congress didn’t have the power to enact it, she reasoned, her crime was punishable only by the states. Lower federal courts said the woman couldn’t challenge the constitutionality of the federal law because her argument raised an issue of “states’ rights”–something only states, not individual citizens, could complain about.
The Supreme Court in Bond unanimously rejected this reasoning. In an opinion penned by Justice Anthony Kennedy–considered by many to be the “swing vote” on the constitutionality of Obamacare–the Court insisted that federalism and limited powers were intricately related, serving a common goal of protecting individual liberty. In the Court’s words, “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”
The Bond decision recognizes a fundamental, simple truth: Keeping the federal government within its constitutionally defined boundaries is necessary to protect individual liberty. And only courts can effectively enforce these constitutional concepts. Neither Congress nor the States can be trusted to limit themselves.
Bond also suggests that the fight over Obamacare isn’t about obscure or narrow constitutional provisions or states’ rights. It isn’t even a fight about whether not buying health insurance is an economic “activity” or “inactivity” that can be fairly characterized as “interstate commerce.” Instead, it is a fight about individual liberty–a test of whether courts truly understand and have the courage to respect the intertwined constitutional mandates of federalism, limited and enumerated powers, and individual liberty so recently articulated in Bond.
Consider the Sixth Circuit’s illogic in upholding the individual mandate: “Congress had a rational basis for concluding that the practice of self-insuring for the cost of health care has a substantial effect on interstate commerce, and that the minimum coverage provision is an essential part of a broader regulatory scheme. Thus, the provision is constitutional notwithstanding the fact that it could be labeled as regulating inactivity.”
If one trudges through the legal jargon carefully, the message is clear: If Congress thinks any activity/inactivity could–not does, but merely theoretically could–have a substantial effect on the economy, it can regulate it. There is virtually nothing beyond congressional reach using this test.
This is a far cry from a government of limited and enumerated powers. And without limited and enumerated powers, there is no meaningful federalism. These foundational constitutional concepts have been transformed into mere platitudes. More importantly, the implications for individual liberty are nothing short of enormous. A federal government that can force you to buy health insurance can force you to buy your veggies, join a gym, buy American cars or do any other thing it deems convenient in the name of regulating commerce. This is the Leviathan the founding generation spilled its blood to resist. It is no exaggeration to say that, in the battle over health reform, your individual liberty is at stake.
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