Law Prof.: Expect SCOTUS to Kill Obamacare

Wednesday, 05 Oct 2011 05:12 PM

By Stephen B. Presser

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Is the “individual mandate” in the Patient Protection and Affordable Care Act (PPACA) — sometimes called “Obamacare” — constitutional?

The White House has announced that it has no doubts of the PPACA’s constitutionality, and this White House confidence must be a factor in the administration’s recent moves toward having the case decided by the Supreme Court of the United States (SCOTUS) as swiftly as possible (probably in the midst of the summer of 2012, in the heat of the battle for the presidency).

The president’s views about the PPACA are also shared by most constitutional scholars, and, of course, when Nancy Pelosi, the former speaker of the House, was asked whether the PPACA had any constitutional infirmities, she reportedly asked her interlocutor, “Are you serious?”

And yet, several lower federal courts have recently declared, clearly and boldly, that the individual mandate — which requires virtually every adult American to purchase and maintain health insurance for his or her entire lives — goes further than the constitution permits Congress to go.

One federal judge, Florida District Court Judge Roger Vinson, has even thrown out the entire PPACA because he believes (correctly, in my view) that the PPACA is absolutely fundamental to the act’s structure, and if it goes, so does the rest of the act.

It cannot be denied that since Franklin Roosevelt’s landslide victory in 1936, after he famously criticized the United States Supreme Court for (in his view) wrongly restricting the reach of the federal government, the court has generally upheld acts of Congress.

The court ruled as such most famously in the case of the Wickard v. Filburn decision, which held that Congress could regulate wheat grown for home consumption because such wheat reduced the demand for wheat in interstate commerce; and in the case of Gonzales v. Raich, where, using similar reasoning, the court held that homegrown cannabis could be prohibited by the federal government, even though a state (California) permitted its cultivation for personal medical use.

Still, there are cases where the court has ruled that Congress has gone too far, such as U.S. v. Lopez (1995), where the court held that Congress had no power to prohibit the carrying of firearms within one thousand feet of schools because that might interfere with interstate commerce (young scholars’ education might be interrupted, and thus they would produce less in interstate commerce).

In another example, U.S. v. Morrison, the court held that violence against women could not be prohibited by the federal government on the grounds that such violence might interfere with women’s ability to participate in interstate commerce.

It is nearly impossible to reconcile Wickard, Raich, Lopez, and Morrison, but my reading of them is that while Congress does, undeniably, have some power to reach deep into the economic lives of U.S. citizens, still there must be some limits on its power.

These limits are clearly hinted at in the 10th Amendment to the Constitution, which provides that the powers not granted to the federal government are reserved to the states, and to the people thereof.

This 10th Amendment expresses a fundamental principle of American government, which is, simply stated, that the primary sources of law are to be the state and local governments, and not the federal government. The federal government, as it is often said, is supposed to be one of limited and enumerated powers.

Our framers understood limiting the federal government to be essential to preserving the liberty of our citizens. The PPACA, in effect, takes over 1/6 of the American economy, and forces Americans to buy a service (insurance) that they may not need or desire.

The logic of forcing Americans to buy health insurance is just a short step away from dictating to Americans other consumer choices (e.g. you may only buy an electronically powered automobile, or you must eat three servings of vegetables or fruits a day).

If Congress can enact the individual mandate in the PPACA, it is very difficult, if not impossible, to find any limits to its powers, and given the 10th Amendment, this is an intolerable situation.

For this reason, when the court finally reviews the PPACA, I will not be surprised if, following the logic of Judge Vinson, a majority of the court not only rejects the individual mandate, but the entire PPACA as well.

Stephen B. Presser is the Raoul Berger Professor of Legal History at Northwestern University School of Law. He is a frequent witness on constitutional issues before congressional committees, and has participated in several challenges to the constitutionality of the PPACA.

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