The simple question this week before the Supreme Court is whether, under the Commerce clause, Congress has the power to require Americans to obtain health insurance. If a majority of the Court’s member don’t like the law, that’s not a valid reason to hold the law unconstitutional. Supposedly, there has to be precedent. There has to be a clear extension of the law that goes beyond a federal issue, and one that does not violate a clearly defined state right. OK, OK. We will just forget about Bush v Gore for now.
Some will say the law has not even been put fully into effect yet. The mandate provisions do not kick in until 2014. And any mandatory penalty or tax for not complying is not collected until 2015. So how can there even be a court challenge? Good question. There is a law on the books called the Anti-Injunction Act that prohibits any court challenge by an individual unless a tax or penalty at issue at been both levied and paid. The court, under this law, has the right, even the obligation, to “punt” if you will on any decision until 2015. But will they? Or will they choose to just get the controversy out of the way?
Can government mandate what an individual is required to do? Certainly. They do it all the time. On the state level, residents are required to buy car insurance and get immunizations. On the national level, federal courts have supported efforts by Congress to make a number of demands on both the states as well as individuals. . Both Medicare and Social Security require an individual to pay into a federally created fund. No federal highway funds are given to each state unless the drinking age was raised to twenty one.
In California, medical use of marijuana is legal, and defendant Angel Reich had a doctor’s prescription to grow the plant for her own personal medical use only. Her case went to the Supreme Court (Ashcroft v. Re ~ ich), and the decision stated that the Commerce Clause applied and the federal government could regulate and prohibit her use. And how about Roscoe Filburn, a farmer from Minnesota, who raised wheat for his family’s own personal use? The Supreme Court upheld a 1938 federal law that told him how much wheat he could grow and made him pay a penalty for every extra bushel. (Wickard v. Filburn)
So there would seem to be ample case law and precedent for the Justices to uphold the idea of federal mandates. The law was passed by Congress and signed by the President. They made the rules. Chief Justice John Roberts has repeatedly said that judges are like umpires. Their job is to call balls and strikes, but not become rule makers. There is any number of examples where Congress has passed, and the Supreme Court has upheld, the regulation of individual activity.
But some would argue there is a big difference this time. In the case of this healthcare law, individuals are penalized for their inactivity. If you don’t buy healthcare, you get penalized. Can the failure to make a purchase be interpreted to be “commercial activity,” and thus be subjected to the new law? I think a strong argument can be made that individual inaction causes a domino effect, that makes those who comply with the law take additional action.
If you don’t comply with the law, then I have to pick up your slack. If you are not covered for health protection, then run to the emergency room to obtain care for free, those of us who do comply with the law have to pay for your failure to comply. Your inaction requires my additional action and forces me to assume additional cost. In this bigger picture, I would argue that there is ample room for the Commerce Clause to apply.
Here’s how David Brooks, the conservative columnist for the New York Times, sums it up: “The individual mandate is perfectly acceptable policy. We effectively have a national health care system. We all indirectly pay for ill, uninsured people who show up at emergency rooms. If all Americans are in the same interconnected health care system, I think it’s reasonable for government to insist that all Americans participate in the insurance network that is the payment method for that system.”
Many will argue that if the Supreme Court puts precedent aside and interjects their own personal feelings about the law by declaring ” Obamacare” unconstitutional, such a rejection will be perceived a s a major setback for the President. But who is going to lead the criticism of too much federal over reach? Mitt Romney is a cinch to be the Republican presidential nominee, and Democrats are already tagging him as the father of the Obama healthcare plan. As Governor of Massachusetts, he confected and strongly supported almost an additional plan for his home state. Can’t you just see the grin come across the President’s face in the first presidential debate when Romney or the moderator brings up Obamacare? “Now just where did the idea come from?”
And just where did the idea of an individual mandate originate before then Governor Romney instituted a similar plan in Massachusetts? The President can site as support for the an individual mandate just about every major Republican figure, starting with Newt Gingrich, and every conservative think tank, beginning with the Heritage Foundation ,going back to the early 1990s when such a mandate was offered as a Republican alternative to the Clinton healthcare proposals.
What we saw at the Supreme Court this week was the three Ps; precedent, politics and posturing. It could be Bush v. Gore all over again. And when all is said and done, Congress and the Supreme Court still have to deal the fact that 40 million Americans have no healthcare. The U.S is the only industrialized nation in the world that faces such a problem. Yet this political debate could continue for years to come.
“There is hardly a political question in the United States which does not sooner or later turn into a judicial one.”
Alexis de Tocqueville
Peace and Justice
Jim Brown’s syndicated column appears each week in numerous newspapers throughout the country and on websites worldwide. You can read all his past columns and see continuing updates at www.jimbrownusa.com. You can also hear Jim’s nationally syndicated radio show each Sunday morning from 9 am till 11:00 am, central time, on the Genesis Radio Network, with a live stream at http://www.jimbrownusa.com