Obamacare’s Fate
We are in for a battle royal, and I want a ringside seat.
Back in early October, in Michigan, U. S. District Judge George Caram Steeh ruled Obamacare constitutional in all respects, contending:
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 was 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.
I argued at the time that Steeh’s ruling inadvertently highlighted the grounds on which the individual mandate would be declared unconstitutional:
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.
Today, in Virginia, by U. S. District Judge Henry Hudson took up the argument I identified and ruled the individual mandate at the heart of Obamacare unconstitutional, declaring that it “would invite unbridled exercise of federal police powers” and that it “exceeds the constitutional boundaries of congressional power.”
Before long, as Richard Epstein notes below, this dispute will end up in the our highest court. There are, I argued in my earlier post, three reasons for supposing that the Supreme Court will strike the law down.
The first is the argument I articulated above – which Professor Epstein discusses with great clarity and learning in his post below. My second reason had 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.
There is another reason that I mentioned as well. “If Obamacare were wildly popular, if it had been passed by an overwhelming bipartisan majority,” I wrote,
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.
As it happens, the Republicans did run against Obamacare in November, and they did trounce the Democrats. I renew my prediction: the Supreme Court will fall in line.
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Comments :
Oct '10
Re: Obamacare’s Fate
You were clearly right in October and I believe you are right now on all three counts you articulate. I am hoping and praying you are. Meanwhile, I am encouraged by this victory for liberty!
May '10
Re: Obamacare’s Fate
Technically you don't want to be ringside at a battle royal, as that involves guys being chucked over the top rope (such thrillingly pugnacious language on this court decision). A couple of rows back might be better.
I want to believe you, honestly, and will stand you the beverage of your choice should it come to pass. But, as my relatives are fond of saying, there's always the Kennedy problem.
Re: Obamacare’s Fate
Kennedy Smith: Technically you don't want to be ringside at a battle royal, as that involves guys being chucked over the top rope (such thrillingly pugnacious language on this court decision). A couple of rows back might be better.
I want to believe you, honestly, and will stand you the beverage of your choice should it come to pass. But, as my relatives are fond of saying, there's always the Kennedy problem. · Dec 13 at 3:06pm
I will drink it.
Sep '10
Re: Obamacare’s Fate
While this argument has some interesting aspects, many of which you noted, I believe the outcome of it, in the long run, is not of great significance. Most of the short comings in the medical care delivery system are unintended results of government interference. The debate currently being held prevents discussion of the necessity of extricating government from the delivery system. If the current law is ruled unconstitutional I believe it will be replaced by another GOP/Dem Rube Goldberg scheme that will continue the march toward socialized medicine. While both parties are populated by politicians who care more about their political careers than their country this appears to be are fate