Supreme Court Preview

The US Supreme Court decision in State of Florida v. US Department of Health and Human Services, and related cases, better known as the Obamacare decision, is but days away. Throwing caution to the wind, I offer this preview.

By a 5-4 vote, the Court will rule the “individual mandate” provision of the health-coverage bill unconstitutional. What should surprise is the closeness of the vote, the narrow margin provided as is customary by Justice Anthony Kennedy. That is because the individual mandate – requiring every American to purchase health insurance or pay a penalty – is an unprecedented expansion of Congressional power. For the first time, Americans will be told that as a condition of citizenship, they must enter the private marketplace and buy a commercial product. That is, frankly, extraordinary.

It is harsh to draw this conclusion and it sounds biased, but justices who vote in favor of the individual mandate are exercising a political, not a legal, judgment. They are essentially saying that there are really no limits to government power or government intrusion into the private lives of American citizens. Such runs counter to the Constitution, the ethos of American life, and the fundamental concepts of liberty as traditionally embraced by Americans. Those liberal justices must maintain: that government can, in fact, order every American to eat broccoli, and/or that the great good of universal health coverage supersedes the constitutional norms that have governed the lives of Americans for more than 220 years. They must also politically support universal health coverage, and wish to defer their constitutional role to Congress and the Executive Branch.

It is interesting that Congress could have chosen to raise taxes to fund a universal health program – but that was politically unpalatable. So the Dems chose the underhanded approach of asserting that the fee Americans must pay for failure to procure insurance a fine, not a tax, but, curiously, a fine to be collected by the IRS. So how can the minority of four rationalize the individual mandate under current Constitutional conceptions?

Much of the current debate is rooted in the Court’s understanding of the Commerce Clause, that part of the Constitution that allows Congress to “regulate commerce…among the several states.” In a strained manner, they make reference to cases like Wickard v. Filburn, a strange 1942 (wartime) case in which farmer Filburn was fined for growing too much wheat on his farm and thereby violating wartime quotas, even though he claimed the wheat was for his family’s use and not for commercial sale. But in that case, and other similar cases, the Court essentially ruled that Congress can order an American not to buy something, or not  to sell something, or not to possess something – all of which might ostensibly affect interstate commerce. But the “individual mandate” would be the very first time that Congress ordered Americans to actually buy something from the private sector, and not simply abstain.

Often, misleaders have pointed to obligatory automobile
insurance as analogous to the “individual mandate” but such is duplicitous. Auto insurance is a state, not a federal, requirement, and is only required of automobile owners. The analogy would be precise if, for example, the government ordered everyone individual American to buy auto insurance, whether or not they own a car, to defray the cost of the illegals who drive without insurance and cause uncompensated harm to others. That dog won’t hunt.

The American conception of liberty does not allow for such intrusions on government’s part into our lives.

The law itself, and not just the “individual mandate,” should be invalidated; yet, I sense that the law itself – minus the mandate – will be upheld 5-4, with Justice Kennedy again providing the swing vote. This – in maintaining the perch he has created in the center – keeps him in the good graces of the liberal press and legal scholars, who will leap to praise his moderation, judiciousness and deference (as opposed to a “no” on the entire bill, for which those same writers would immediately castigate him for being partisan, a right-wing Neanderthal, a prisoner of the conservatives and probably a racist as well).

In effect, such a vote is a distinction without a difference, between Obamacare hinges on the “individual mandate” designed to thrust into the system billions of dollars of young people’s insurance premiums – those who will have to pay into the system but owing to their youth and health are rarely medical consumers. Thus the law would be sent back to Congress, die there – but at least Obama could partially save face. Many are worried about the fate of the “popular” aspects of the bill – especially the “child-on-parents’-insurance-policy-until-age-26,” also known as the “Infantilization of the American Adult Clause.” How pathetic is that, a telling indication of the success of the nanny state. (Why stop at 26? Why not 46?)

The politics are also labyrinthine. Obviously, a defeat for Obamacare in whole or part would be a blow to the President, who would have wasted so much of his and Congress’ time on a quixotic bill while the economy foundered. It would also undermine his self-anointed credentials as a distinguished legal scholar, having taught Constitutional Law (as an adjunct) at the University of Chicago Law School – and despite never having published any scholarly articles. To have his primary domestic achievement reversed would be embarrassing, and should be another nail in the coffin of his re-election hopes.

Nevertheless, there would be a bright side for Obama even in the case of a reversal. After all, his signature legislation is wildly unpopular, and he would not have to run while defending it. He would also then find himself in his most enjoyable position – campaigner on the stump making promises (health care done right, more amenable justices on the Supreme Court, close Guantanamo, etc.).

In effect, he wins by losing. The theory is good, but the reality is that the spin placed on it will dictate to many non-thinking Americans what exactly they should think. And there is a precedent for such a Pyrrhic defeat (!)  In 1935, the Court ruled much of FDR’s New Deal unconstitutional, which infuriated the president, led him to devise a scheme to pack the Court with his supporters – but only after he won re-election by a landslide in 1936. The fact that FDR was rebuffed by the Court was no bar to his re-election.

Obama, though, lacking FDR’s gravitas, record and substance, will not fare as well. He especially lacks FDR’s grace under pressure and is not likely to accept defeat with poise and dignity. On balance, a reversal of Obamacare will harm the President and his re-election efforts, and just as well. Added to the wobbly economy, an incapacity to internalize blame, and a lack of a plan to extricate the US from this economic morass deeper than “tax the rich,” Obama’s defeat on Obamacare should make his re-election more difficult – better for America and the world.

We’ll see soon enough.

[Click on my lecture on Florida v HHS and the Torah’s View of Obamacare for more.]