Two bills introduced in the U.S. House of Representatives show that whatever they may say on the campaign trail, many Republicans in Congress don’t have much more respect for federalism, states’ rights, or local control than Democrats do.
These two bills also demonstrate, if further demonstration be needed, that Congress has broken almost all constitutional restraint, and that a convention of states is the only real hope left, short of massive civil disobedience, of repairing the situation.
The first bill is H.R. 36, which passed the House on May 13 with nearly unanimous GOP support. It would outlaw most abortions of fetuses more than five weeks old.
I’m pro-life, so I think curtailing abortion would be a good thing. But the Constitution specifically limits Congress to certain enumerated powers, and regulating abortion is not one of them. H.R. 36 offers no clue as to what its constitutional basis is supposed to be. It’s basically a criminal law of the kind the Constitution clearly leaves to the exclusive jurisdiction of the states.
When I worked for pro-life groups, one of our key arguments was that the Supreme Court’s abortion decision in Roe v. Wade violated the Constitution because it improperly federalized an issue that is constitutionally a state responsibility. Even many pro-choice Americans agree with that principle.
But the unprincipled GOP House majority just threw that argument into the trash bin. Republican members of Congress can no longer credibly use it.
The other bill is H.R. 2300, a massive (242 page) measure to re-jigger the health care system yet again. Although the bill has some good parts (e.g., repealing Obamacare), it also imposes mandates on state courts considering health care claims.
The Constitution grants no power to Congress to impose rules on state courts about how they resolve health care cases, other than the power to enforce the 14th amendment rule that those courts respect due process and equal protection of the law. In fact, during the debates over whether to ratify the Constitution, the document’s proponents sold it to the public in part by affirming that subjects such as tort law, most criminal law, civil justice among citizens of the same state, and health care all would remain immune from congressional meddling.
Yet H.R. 2300 would empower unelected bureaucrats in the Department of Health and Human Services to override state law in an area the Constitution clearly reserves to the states. H.R. 2300 recites no constitutional basis for this provision.
Widespread support for H.R. 36 and H.R. 2300 from House Republicans—generally elected on promises to respect our system of federalism—provides yet more evidence that Congress will never cure Congress. It’s up to the states, acting through the amendment process of Article V, to do the job.
The Harvard Journal of Law and Public Policy has now published my article on the Origination Clause. That’s the article documenting the research that found—contrary to all expectations—that the taxes in Obamacare were validly adopted.
But it also found that the regulations and appropriations in Obamacare were invalidly adopted.
You can find the article itself here.
This article originally appeared at the American Thinker.
One of the constitutional disputes triggered by the Affordable Care Act, Obamacare, is whether by substituting new material for the original House-passed bill (H.R. 3590), the Senate exceeded its constitutional power to amend the original measure. This, in turn, has provoked a debate over whether the Founders considered complete substitutes to be valid amendments.
A recently-republished piece of evidence suggests that they did.
The Constitution’s Origination Clause requires that “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” Because the final version of Obamacare imposed a variety of taxes, it unquestionably was a “Bill for raising Revenue.”
Obamacare’s taxes, appropriations, and health-care regulations did not exist in the House-passed version of H.R. 3590. That incarnation of the bill was only a few pages long and was limited to making minor adjustments to the Internal Revenue Code irrelevant to health care. Under the guise of amendment, the Senate gutted the original language and substituted over 2000 pages of Obamacare.
Some writers argue that complete substitutions were not considered valid amendments during the Founding Era, while others contend that they were. Last year, I undertook a wide-ranging investigation into the subject that will be published within the next few weeks by the Harvard Journal of Law and Public Policy. The article is summarized at length here.
I found that complete substitutions may have been unknown in the British Parliament, one source of the Constitution’s House-origination rule. I also found, however, that they were occasionally used in several states between Independence and the time the Constitution was ratified, and that they were considered valid amendments in those states.
This year, the Wisconsin Historical Society issued two new volumes of the magisterial Documentary History of the Ratification of the Constitution. Those volumes cover the debate over the Constitution waged in Maryland from 1787 through the end of 1788.
The first of the volumes reprints a pamphlet written in favor of the Constitution by “Aristides,” the pen name of jurist Alexander Contee Hanson. Hanson was a respected figure in Maryland, and his pamphlet was read widely both in that state and in Virginia. At one point he addressed the question of whether the Constitutional Convention exceeded its authority on the (substantially false) assumption that the delegates’ commissions had been limited to proposing amendments to the Articles of Confederation. Hanson argued that proposing a substitute was a recognized form of “amendment:”
Amendment, in parliamentary language, means either addition, or diminution, or striking out the whole, and substituting something in its room.
Hanson’s assertion is particularly relevant to the Constitution’s original meaning because his own state legislature is not among those offering contemporaneous evidence of complete substitutions. Hanson was reflecting, in other words, an understanding that extended beyond his own state’s boundaries.
Unfortunately for advocates of Obamacare, the validity of complete substitutions as “Amendments” does not resolve the issue of constitutionality. During the Founding Era, even complete substitutes had to be connected to the subject matter of the original bill—or, in modern language, “germane” to the original. Otherwise, they were new bills, not valid amendments.
For reasons documented in my article, H.R. 3590 as passed by the House qualified constitutionally as a “bill for raising Revenue” (even though it was revenue-neutral) because it amended the tax code. Under Founding-Era rules all the Senate’s revenue changes were germane to the original, and therefore valid. However, the Senate-added appropriations and regulations were not germane to the subject of revenue. By including them, the Senate exceeded its authority to amend a “bill for raising Revenue. This means that by the Founders understanding of the Origination Clause, those additions were unconstitutional and void.
To know more about socialized medicine—and our future under Obamacare—check out the Department of Veterans’ Affairs health care scandals. The scandals encompass service failure, egregious cost overruns and delays, and basic failures (such as blood test mixups) that would be comical if not so dangerous.
Obviously, the U.S. Government and the American public owe a debt to our military veterans, but socialized medicine is a poor way to discharge it. Vets are entitled to the best we can offer, not to Soviet-style incompetence.
And the underlying situation is probably far worse than the scandals we know about. Among the bad things I became familiar with when working in socialized institutions (in my case, state universities) were the inefficiencies—not exactly corrupt, but stupid and expensive for the taxpayers—that persist year after year without any outsiders taking notice. In private companies, most of those inefficiencies would dissolve before the demands of market competition. In socialized institutions, they go on and on . . . and on.
The idea that the government has to own facilities in order to provide services is a discredited relic of the past. Other government health services—including Medicare and Medicaid—allow patients to visit private facilities and use private physicians. Great Britain began its government health care system with the socialized delivery model, but has largely abandoned it.
Unfortunately, under Obamacare we are likely to see more socialism rather than less. The problems with the government-run “exchanges” represent only the beginning.
Under pressure of the VA scandals, the Obama administration is permitting vets to opt for free market providers, but the question remains, “Why is it necessary for the government to directly own health care facilities at all?
When I first heard about King v. Burwell, the latest Obamacare controversy before the U.S. Supreme Court, I assumed it was the kind of case in which the legislative intent was clear, but for one reason or another the wording of the statute did not match the legislative intent.
That would have been an interesting case, because it would have given the Court a chance to struggle with age-old “intent vs. text” questions.
It turns out, though, that the legislative intent is unclear—if there was any unified intent at all. And the statute is at least as messy as the evidence of intent.
First as the intent: Whether Congress intended for tax credits to go to citizens of states that had not adopted state insurance exchanges depends on whom you ask. The government now says “yes,” but Obamacare architect Jonathan Gruber was captured in two separate YouTube videos saying “no.” In those videos, he claims that tax credits were to be limited to states that set up their own exchanges as a way of inducing states to cooperate (no exchange, no tax credits). Some in the media assert that a decision for the plaintiffs (limiting credits to insurance purchased on state-created exchanges) would create “chaos”—but if Gruber is right, then that was exactly what Congress wanted.
Now for the text: Reading the record in this case give you some idea of how poorly drafted the Obamacare law is. Section 1311(b)(1) of the statute requires the states to establish exchanges. A provision just a few sections later (1321(b)) tells states they may elect to establish exchanges, and another (1321(c)) provides for federally-created substitutes.
Still another section says that tax credits are available for insurance purchased on “exchanges.” In at least two provisions, the statute inserts cross references that make it crystal clear it means state-created exchanges—not the federally-created substitutes.
But still other provisions seem to assume that state-created exchanges, and therefore the tax credits, will exist in all states. But for this to be so, then the statute’s drafters had to assume that the first section (mentioned above) ordering the states to set up such exchanges was valid. Problem is, that section is clearly unconstitutional: The Supreme Court has ruled several times that the federal government may not simply order a state to adopt a law or perform a task. Whoever wrote that section had never studied elementary constitutional law, or perhaps didn’t care.
There’s another wrinkle: The way the case got to the Supreme Court is that the plaintiffs challenged an IRS interpretation of the statute. Specifically, the IRS read the law as requiring tax credits in all states. Now, as a rule of thumb (under the Court’s Chevron holding), the Court defers to any reasonable executive-branch interpretation of an ambiguous statute. But the traditional legislative grace canon holds that the Chevron rule doesn’t apply in tax-credit cases, because taxation is so central to the legislative (as opposed to the executive) power.
One argument for tax credits in all states, possibly originated by Justice Kennedy, acknowledges that the law’s mandate on states to create exchanges is unconstitutional. It also assumes that interpreting the statute to provide for credits only in states that establish their own exchanges would be unconstitutional as excessive federal “coercion.” This argument therefore concludes that the statute must be construed to provide for tax credits in all states.
There are two problems with this argument. First, if severe financial consequences for state non-cooperation constitute “coercion,” then certain other federal welfare programs, particularly Medicaid, are unconstitutional. It is unlikely that anyone who would advance this argument would really support that result. Second, by universalizing the tax credits, this argument rewards an overreaching federal government by authorizing it to spend even more money and thereby control even more lives than otherwise. It is an elementary legal principle that no one should be rewarded for his own wrong.
When faced with incurable problems in a statute, judges’ time-honored solution is to kick the issue back to the political branches for a solution. (The courts often follow a similar approach in the common law—that is, ruling in a way that forces the parties to negotiate their way out of the problem.)
Deciding the case for the plaintiffs (denying tax credits in states that do not adopt exchanges) will create either (1) a mess intended by Congress or (2) a mess not intended by Congress. Either way, the public anger generated by loss of tax credits will force Congress and the President to work together to clear matters up.
That’s exactly what the Supreme Court should do.
Filed under: All Postings, ObamaCare, The Founding, supreme court
Chief Justice John Marshall (in office 1801-1835) is often identified with an expansive “big government” interpretation of the Constitution. Fans of big government cite him as an ally; opponents as an enemy.
This view of Marshall is a caricature. It is true that Marshall was a Federalist—he occupied a place on the political spectrum of his day closer to Alexander Hamilton than to Thomas Jefferson. But to say that he subscribed wholly to Hamilton’s constitutional views would be untrue. It is even more inaccurate to claim him as a justice who would uphold the constitutionality of the modern federal regulatory welfare state. Marshall was far more moderate than that.
The caricature of our greatest Chief Justice was created in his own time by his political opponents. In the modern era it has been nurtured by “progressives” who claim Marshall for their version of the Constitution. Among the latter group are Supreme Court justices who quote his words out of context, book authors who omit critical passages from his opinions, and law professors unfamiliar with other things Marshall wrote and with the law and language of his time.
In 2011, I authored an article correcting the record. I also co-authored another with the Independence Institute’s own Dave Kopel, explaining why Marshall would have held Obamacare to be unconstitutional.
Now Dr. Thomas K. Lindsay of the Texas Public Policy Foundation has joined in. A new contribution by Dr. Lindsay relies mostly on my research, but he introduces it to a new and much larger audience. You can read Dr. Lindsay’s essay here.
The Constitution requires the President to “take Care that the Laws be faithfully executed.” This “take Care” language came from 18th century commissions and formal instructions by which higher officials delineated what lower officials were to do. The premier examples were royal instructions to colonial governors, but the Continental and Confederation Congresses used the same language in instructing civil and military officials.
The Constitution’s language is both a grant of enumerated power to the President and a mandatory duty imposed on him.
The Obama administration’s partial refusal to enforce various laws has raised questions of whether the President is violating the Constitution’s command, and thus committing an impeachable offense.
The question can be a difficult one, because everyone recognizes that the President has some discretion in exercise of the executive power. For example, the cost of full enforcement might be far greater than the appropriated funds for enforcement, requiring the President to set priorties. Also, fully enforcing the law against some persons technically in violation can work great injustice.
So is Obama violating his constitutional duty or not? Legal scholar Zachary Price examines this question in a thoughtful, balanced article written for Vanderbilt Law Review.
He concludes that in its partial non-enforcement of marijuana laws, Obama is within the scope of his discretion, although somewhat close to the line. Obama crossed the line, however, in refusing to enforce mandates imposed by the Affordable Care Act (Obamacare) and in granting exemptions from the immigration laws to whole classes of people.
Professor Price finds that the George W. Bush administration also exceeded the scope of its discretion in underenforcing “New Source Review” environmental laws.
Filed under: All Postings, ObamaCare, The Founding, supreme court
But if a “conservative” justice is one who consistently interprets the Constitution in accordance with traditional methods of judging—as the Founders intended for it to be interpreted—then the Court is anything but conservative.
On social issues the Court has been pushing society to the Left. Otherwise, the best description of its jurisprudence is “status quo.” And in this instance, preserving the status quo renders the Court liberal, not conservative.
That is because the status quo the justices are preserving is a body of liberal jurisprudence created in the 20th century when the Court was usually controlled by “progressive” majorities.
The Court’s tendency to protect liberal jurisprudence appears even in cases where the specific outcomes are pleasing to conservatives. In fact, the “conservative” outcomes often are relatively marginal—minor victories—while the jurisprudence that underlies the result is a major triumph for liberals.
Three cases from the Supreme Court term illustrate the point.
The first is the famous Hobby Lobby case, in which the Court ruled that the Religious Freedom Restoration Act (RFRA) protects an employer’s right not to provide abortifacients. I have written elsewhere about a liberal victory in Hobby Lobby that received almost no publicity. But there was another, more important, liberal victory on a point of fundamental principle.
The Hobby Lobby dispute arose from federal regulations of employment and of health insurance purportedly authorized by Congress in the Affordable Care Act (Obamacare). Unlike the “tax” justification for Obamacare’s individual insurance mandate, the supposed constitutional basis for those regulations is Congress’s Commerce Power, contained in the Constitution’s Commerce Clause and Necessary and Proper Clause.
Everyone concedes, at least in theory, that Congress has only the authority the Constitution grants it—Congress’s “enumerated powers.” But properly construed, Congress’s enumerated power to regulate “Commerce” does not encompass employment relations or insurance, except in some peripheral situations. The Supreme Court recognized this consistently for the Constitution’s first 150 years. Indeed, during that time the Court held repeatedly, and unanimously, that most insurance is NOT “Commerce.” It was not until “progressive” justices took control in in the late 1930s and 1940s that the rules changed, and it was not until relatively recently that Congress began systematically to interfere in the insurance market.
A bench consisting of traditional (conservative) justices, therefore, would have held that the Obamacare regulations were outside the federal government’s enumerated powers, and thereby invalid for that reason. Such a court would not have reached the RFRA issue because there was no need to do so.
A second example from the Supreme Court term just past is the campaign finance decision in McCutcheon v. Federal Election Commission. This case invalidated a congressional effort to limit the total amount any person could donate to all candidates combined. The basis for the decision was the Free Speech Clause of the First Amendment. Media outlets have described this case also as a “conservative” triumph.
Yet a truly conservative court would never have reached the First Amendment issue because in presuming to regulate campaigns, Congress again exceeded its enumerated powers. The Constitution does confer on Congress authority to regulate the “Manner of holding [congressional] Elections.” But this constitutional grant does not extend to regulation of campaigns.
The scope of the constitutional grant is quite clear from the historical record, as I explained at length a 2010 article cited last year by Justice Thomas, the only member of the Court who consistently interprets the Constitution in the traditional (”conservative”) manner. Congress’s authority to regulate “the Manner of holding Elections” refers strictly to voting mechanics. For example, Congress may specify whether we vote by open or secret ballot and whether a candidate needs a majority to win or can win by a plurality. But the Constitution leaves regulation of campaigns to state laws governing defamation, corrupt practices, and so forth.
The Supreme Court did not hold that “Manner of Election” included campaigns until a “progressive” majority did so in 1941. The Court’s accompanying opinion was based on little or no inquiry into the real meaning of the constitutional language.
Yet in McCutcheon the justices (and the parties) accepted that suspect holding without question, and proceeded immediately to the First Amendment issue.
The third example from the term just ended is NLRB v. Noel Canning, which unanimously invalidated some of President Obama’s “recess appointments.” The Constitution’s Recess Appointments Clause is an enumerated power of the President that grants him the prerogative, without Senate consent, “to fill up all Vacancies that may happen during the Recess of the Senate.” The Court needed to decide (1) whether the “Recess” meant only the intersession recess or encompassed other breaks as well, and (2) whether for a vacancy to “happen” it had to arise during the recess or could merely continue into a recess.
The Founding-Era record is crystal clear on both questions: A “Recess” means only an intersession break and the vacancy must arise then. A traditional (“conservative”) bench would have so found. And, in fact, four justices did so find—relying on an article I wrote earlier this year that documented the Founders’ understanding at length.
But the majority did not follow the Recess Appointments Clause as the Founders understood it. Rather, it applied a sort of balancing test of the “living constitution” variety. President Obama lost only because he had violated even that flaccid and malleable standard.
The result was a small conservative victory, but at great cost: That cost was a complete revision and a serious weakening of an important constitutional check-and-balance—yet another example of the fundamentally liberal jurisprudence of a Court that many in the national media insist on calling “conservative.”
Filed under: All Postings, ObamaCare, The Founding, supreme court
Two years ago, the Supreme Court declared Obamacare’s penalty for failure to purchase conforming insurance to be a “tax.” Several plaintiffs subsequently sued in federal court arguing that the penalty is invalid for violating the Constitution’s Origination Clause. The Origination Clause says that “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”
The argument of the plaintiffs is that the Affordable Care Act and its taxes originated in the Senate, and that the tax/penalty is therefore void. (A 1990 Supreme Court case does strongly suggest that taxes originating in the Senate are void.) Thus far, those lawsuits have been unsuccessful, but they have provoked much commentary.
H.R. 3590 initially was a 6-page bill addressing (1) a federal income credit and (2) acceleration of certain estimated corporate income tax payments. The bill probably would have had little revenue effect, and may even have cost money. After H.R. 3590 passed the House, the Senate gutted it entirely and inserted 2,076 pages of Obamacare. The Senate voted for H.R. 3590 in that form, and transmitted it to the House, which likewise approved it.
As readers of this site know, I have my own political views, but I do my best to conduct objective research. And I insist on reporting my results whether I personally like them or not. In January, I began an independent research project to determine if the Origination Clause lawsuits have merit. The answer turns out to be both “yes” and “no.”
There are several key issues involved:
* The Constitution’s Origination Clause applies only to “Bills for raising Revenue.” What does that phase mean?
* Was the original H.R. 3590 a “Bill for raising Revenue?”
* If it was, then the Senate had power only to “propose or concur with Amendments as on other Bills.” What is an “Amendment” as the Constitution uses the word? Was the complete replacement of the text of H.R. 3590 an “Amendment?”
The most commonly-used sources for recovering original constitutional meaning are the records of the 1787 Philadelphia Convention, the debates in the state ratifying conventions, and orations and publications (such as The Federalist) issued in advance of ratification. I found, as some other scholars have, that this material was insufficient to explain the scope and meaning of the Origination Clause.
I often have to venture well beyond the sources customarily used, and that was the case here. The origination rule came from the British Parliament, so I examined 50 years of parliamentary debates, as well as historical works on Parliament. I read 18th century treatises on the topic. I examined the legislative records of American colonies. I also examined the legislative records of the Continental, Confederation, and first Federal Congresses. Finally, I studied the origination rules in the newly-independent American states (14 of them, counting Vermont). This required perusing early state constitutions and legislative records. I disregarded materials generated too late to have influenced the founders.
I embodied my conclusions in a new, and rather lengthy, article. Here they are:
* The constitutional phrase “Bill for raising Revenue” means a “tax” or a change in the tax code justifiable only under the Constitution’s Taxation Clause. (An exaction for regulating commerce is not a “Bill for raising Revenue.”)
* H.R. 3590 in its initial form was a “Bill for raising Revenue” as the Constitution uses that term. It does not matter that H.R. 3590 in that form was revenue-neutral or revenue-negative. All changes to the tax code are within the origination rule.
* H.R. 3590 properly arose in the House of Representatives.
* The Senate had power to propose “amendments” of H.R. 3590. An amendment could take the form of a compete substitution. In fact, I found a fair number of examples of founding-era legislatures amending measures by complete substitution.
* However, the constitutional word “Amendment” is limited to the subject matter of the original bill. The claim made by some writers that an “Amendment” could include an unrelated substitute turned out to be erroneous.
* In other words, the power of an amending chamber over a revenue bill is less than the power of an originating chamber.
* For constitutional purposes, all “Revenue” is the same subject matter, so it is irrelevant that the Senate’s revisions completely altered the nature of the taxes in H.R. 3590. Thus, because the Supreme Court has held the penalty to be a tax, the penalty was within the power of the Senate to add. Also valid are Obamacare’s other levies, such as the medical equipment tax.
* On the other hand, because the underlying H.R. 3590 was limited to the subject of revenue and any “Amendment” must address the same subject as the underlying bill, the Senate’s addition of regulations and appropriations was not within its power.
I concluded that the Origination Clause lawsuits are attacking the wrong part of the law. The invalid portions of Obamacare under the Origination Clause are not its taxes, but its multitude of appropriations and its regulations on health care providers, employers, insurance companies, and others.
One final observation: In dismissing one of the origination suits late last month, the U.S. Court of Appeals for the D.C. Circuit held that the Obamacare tax was not a “Bill for raising Revenue” because it was passed for regulatory purposes. But the anterior constitutional test is whether the initial H.R. 3590 was a revenue bill—and it certainly was, according to the constitutional definition.
If the Court of Appeals were correct that the penalty is regulatory, then the penalty would be invalid as outside the Senate’s amendment power.
More importantly, however, the Supreme Court specifically held that congressional regulatory purposes were outside the scope of Congress’s other enumerated powers. Only the Taxation Clause supports the penalty, and it can be preserved only as a tax.
The Hobby Lobby case is being hailed by freedom advocates as a great victory. On balance it certainly it is a victory for those who value personal freedom. But it also contains land mines that may one day prove destructive to freedom.
One of these land mines is how the justices treated the question of whether mandated abortifacient insurance promotes a “compelling government interest.”
In its principal opinion, the Court assumed for purposes of argument that the U.S. Department of Health and Human Services (HHS) contraceptive mandate serves a compelling government interest. However, five members of the Court – a majority – went farther: Justice Kennedy stated in concurring opinion that the decision’s “premise” was that the federal government had a “compelling interest in the health of female employees.” The four dissenters affirmatively claimed that the mandate furthered “compelling interests in public health and women’s well being.”
The mandate in question was issued under the Affordable Care Act (ObamaCare). In 2011, a federal district judge found that another Obamacare mandate also served a “compelling interest” (Mead v. Holder).
It is a very serious matter when the Supreme Court classifies a law or other government action as serving a “compelling interest.” In the Court’s jurisprudence, most laws promote only “legitimate” interests, and a few promote legitimate interests that are “important” as well. On rare occasions, a legitimate interest is held also to be “compelling.” If a law is deemed “necessary” to advance the compelling interest, the law may actually overrule portions of the Bill of Rights. It also may overrule basic liberties listed elsewhere in the Constitution or in the Religious Freedom Restoration Act.
Although the ObamaCare mandate in Hobby Lobby ultimately did not override the Religious Freedom Restoration Act, the ObamaCare mandate in Mead v. Holder did.
In our federal system, the states enjoy broad powers to regulate to promote health, safety, morals, and general welfare. In other words, states can employ the law for many legitimate purposes. The Court has found that some of these legitimate purposes are compelling. For example, a state vaccination law designed to prevent epidemics may overrule one’s right to refuse vaccination. Similarly, the Court holds that a state’s interest in stamping out racial discrimination is not only legitimate, but compelling.
Still, the number of compelling interests is fairly small. Even state health laws usually are not compelling enough to overrule fundamental rights.
Unlike the states, the federal government is limited to the enumerated powers granted in the Constitution. The Supreme Court has ruled that some of these enumerated powers also serve compelling interests, such as national defense and Congress’s 14th Amendment authority to remedy discrimination by state governments. But federal peacetime economic regulations, like state laws, are almost never “compelling.”
That brings us to ObamaCare. The Affordable Care Act has all sorts of social and health care implications, but (aside from its taxes and spending provisions) it is justified constitutionally as a set of commercial and economic regulations. For example, when arguing that the Supreme Court should uphold ObamaCare, the president characterized it as “a[n] economic issue … that I think most people would clearly consider commerce.” In her Hobby Lobby dissent, Justice Ginsburg likewise cited economic factors to justify the contraceptive mandate.
Thus, despite ObamaCare’s health implications, its constitutional purpose is economics or, more precisely, commerce. ObamaCare’s regulations on insurance companies and employers, such as the contraceptive mandate, specifically are said to rest on the Constitution’s Commerce Clause. This is because the Constitution grants the federal government no enumerated power over health care. The great Chief Justice John Marshall made this very point in his famous opinion in Gibbons v. Odgen, when he wrote that “health laws of every description” were reserved exclusively to the states.
But if, constitutionally, ObamaCare is but a collection of economic regulations – and if peacetime economic interests are virtually never “compelling” – then why is ObamaCare different? Is it just that the ObamaCare is popular among the class of people who serve as federal judges?
The answer is that in this sense, ObamaCare is not different. It is constitutionally similar to many hundreds of other economic regulations enacted by Congress and the states. It is just more comprehensive and much more intrusive.
Now consider the risk to freedom from allowing such a law to be lifted to “compelling” status. That risk extends far beyond the threat to religious liberty. If, for example, providing “free” contraceptives is a compelling interest, then Congress might pass a law forcing companies to produce them. Or if forcing people to buy insurance serves a compelling interest, then federal officials might well demand laws to jail people who try to dissuade others from signing up.
Remember the Supreme Court’s formula: a law necessary to promote a compelling interest can override the Bill of Rights. ObamaCare is barely constitutional – if it is constitutional at all. We must not allow the courts to sanctify it.
Post script: More than two years ago, I predicted that the Supreme Court would dismiss the anti-mandate First Amendment claims and that Mead v. Holder raised the possibility that some judges would treat Obamacare as “compelling.” You read it here first!