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Saturday, April 3, 2010

Assessing AG's Arguments for Obamacare's Legality

In this article, I will address the statement issued by the Attorneys General of Ohio and Iowa, found here. They argued that Obamacare is Constitutional.

Originally, I was skeptical that the Supreme Court would strike down any part of Obamacare. The AG's article has encouraged me otherwise. It makes two main arguments. First, is the "Commerce Clause" argument, which is probably good. Second, is the issue of the individual mandate. On this issue, the AG's are unable to make a persuasive argument.

Their Commerce Clause argument holds water. Under this clause, Congress may "regulate interstate commerce." Until the 1930's this was one of the most important limitations on Congressional power. However, at that point, it became one of the most important expanders of Congressional power. In order to accomplish this, the Supreme Court had to say that Congress could tell a family that they could not grow wheat for themselves, in their own back yard, during the Great Depression (Wickard v. Filburn). Since this case: interstate commerce = everything. However, in 1995, the Court scaled back the Commerce Clause a little bit, saying that Congress could not regulate the carrying of firearms, which could not possibly be interpreted as "commerce" (U.S. v. Lopez). The door was seemingly open for revivial of American's rights. But in 2005, the Court even allowed Congress to tell a state that it could not control marijuana that never crossed state borders (Gonzales v. Raich). Amazingly, Justice Scalia was the deciding vote.

The Court's illogical rationale regarding how these activities could be "interstate commerce" would be silly at best; if it wasn't so scary. They basically said that the activity need merely "effect" interstate commerce in some imaginable way.

So the AG's are right on this one: if Congress can tell you what you can grow in your garden because it "effects interstate commerce," than it can do just about anything related to anything vaguely called "commerce." The only hope is that the Court is willing to scale back the doctrine or overrule it. This is not at all unprecedented, but its rare.

Here's what would have to happen for the Commerce Clause to be interpreted according to its actual meaning. The Commerce Clause needs at least 5 of 9 votes to survive. The Court will have 4 anti-constitutionalists against the Clause and 3 conservatives for it. The swing votes will be Kennedy and Scalia. Kennedy voted with the majority in Gonzalez, so he is unlikely to uphold the clause now. This is why the Commerce Clause is probably still effectively deleted from the Constitution. I think Scalia will vote with the Conservatives, probably on some illogical grounds. I believe this, because I believe Scalia only concurred in Gonzalez v. Raich, because it was a drug-related case--this is consistent with his peculiar ideology. I don't think it had anything to do with law or logic. Assuming Scalia comes over, then the only hope is to convince Kennedy. This is possible, but unlikely, because he will want to stay consistent with his vote in Gonzalez.

However, the door is open for Kennedy to vote with the conservatives. The AG's had a really difficult time with the issue of whether the individual mandate falls within the intended definition of "regulation." Certainly, the legislative intent of the commerce clause was to reserve the power to issue individual mandates to the states. However, the Court is more likely to look at the inherent powers of Congress to make laws under the precedents of the last several decades. The AG's attempted to argue that the government does this all the time. This was disingenuous of them. They know exactly what is going on here, and that it is unprecedented in Constitutional History. Law School Constitutional Law Professor Obama was very slick with this one.

At no point in American history, has the federal Congress tried to criminalize "inactivity." Social Security is connected with an activity--namely working. The military draft was connected with an express power of Congress to raise an Army. Massachusetts has an individual mandate: but that's a state government, which has an entirely different kind of power than the federal Congress.
**(States have any power not forbidden by the Constitution, while Congress merely has the powers listed in the Constitution).

Assuming the AG's thought really hard about this, I am enthused that this was the best they could do. Frankly, it is pretty weak. Never has Congress exercised the power to arrest you for not buying a commercial product. This was done very cleverly by the President. It is a well-designed law, intended to get the Supreme Court to allow one more little step away from the Constitution. By not making the step too big, he makes it difficult for the Court. However, since it is unprecedented, the Court is more free to strike it down, without having to worry about stari decisis (i.e. the question of whether to let the law stand).

From the progressive perspective, the goal is this: if they can get the Court to approve this, it opens the door wider for income redistribution. Congress can then require people to give their money directly to other private parties. Progressives already succeeded in getting the Court to say that Congress could force you to give your personal house to another private party. So this was the next step.

The issue may come down to politics, which is often the case with the U.S. Supreme Court. The Supreme Court has a majority of conservative leaning Justices. I believe there is likely some eagerness on the part of these five Justices to resist the President's power grab on this. This case could create an opportunity for the Court to draw more of a fine line with regards to the power of Congress to regulate interstate commerce.