WASHINGTON, April 2, 2012—Last week’s oral arguments to the Supreme Court marked another important chapter in the three-year saga that is Obamacare. What started as a huge experiment in expanding health care coverage now hangs on the twin issues of separation of powers and economic liberty. The Court won’t rule on whether national health insurance is a good or bad thing, but on whether the law unconstitutionally expands congressional power.
It’s becoming apparent that the whole Obamacare endeavor was built on shaky constitutional ground.
No recent policy has been as polarizing as the “Patient Protection and Affordable Care Act.” The debate over Obamacare has transformed the American political landscape, but regardless of which side has the best arguments on health care, Obamacare is constitutionally flawed.
Article 1 Section 8 of the Constitution of the United States is known as the “Commerce Clause.” It grants Congress the power to “regulate commerce among the several states.” It is this clause that has received the greatest attention, as it forms the basis to justify legislating the “individual mandate.” It will likely be the reason that Obamacare is ruled unconstitutional. However, distrust of Obamacare is deeper than the constitutional argument.
Distrust of centralized government goes to the very core of American identity. Any piece of federal legislation that can be construed as the first step onto a “slippery slope” toward tyranny will inevitably raise the ire of conservative America.
Those who oppose Obamacare do so in the belief that the legislation is congressional overreach of its constitutional mandate, granting it far-reaching powers over every economic decision made by American citizens.
Although it may be a stretch to suggest that forcing people to buy health insurance is the first step to death panels and tanks on the streets, many find the argument convincing. Indeed, the emergence of the Tea Party is a testament to how inflammatory the argument has been.
Many liberals believe that the Supreme Court will overstep its constitutional mandate if it rules against the legislation (and in the process they ignore Marbury v. Madison and numerous precedents since then). Last week’s arguments were, in part, to determine whether the Supreme Court could rule on the legislation, let alone rule against it.
If PPACA is voted down, the court will be accused of acting as a “super-legislature” defying the will of elected representatives. This point is especially important given the fact that the law is likely to be overturned only by a slim 5-4 majority.
Each side is right to be concerned and devote as much firepower as it can to this battle. The stakes are huge, from both the financial and political points of view.
But what’s so interesting about this story is that as influential as Obamacare has been – in terms of how it has defined a presidency, how it gave rise to a movement ultimately responsible for gridlock in Washington, and how it has galvanized more than half of the states in the union to sue the federal government – the fate of the legislation now increasingly looks like it will have nothing to do with health care.
What the Obama administration missed is that, although they managed to convince Congress and powerful lobby groups that the legislation would keep insurance costs down by mandating the “private purchase” of health insurance, they failed to foresee the judicial roadblock unveiled for the first time last Tuesday.
To be clear, the logistics involved with establishing universal healthcare coverage in the United States are absolutely mind-boggling, and it is a testament to the Obama administration that they have managed to get as far as they have.
But when Justice Anthony Kennedy asked Solicitor General Donald Verrilli why an extension of the Commerce Clause was justified in this particular case, Verrilli was visibly unprepared to answer. He found it difficult to explain the constitutional “limiting principle” would apply if the federal government were to acquire the powers enumerated in the legislation.
It’s clear that this case does indeed fall within the purview of the high court, and that they will likely strike down the individual mandate on constitutional, not political, grounds. The Court’s role is to ensure that the hallmark of American governance – the separation of powers – remains firmly in place.
Whether the Obama administration failed to anticipate this challenge will be debated for years to come, but now one thing is for sure: They will be hard pressed to justify their case in legal terms as they are now up against the weight of the highest law in the land.
America is the last western industrialized country not to have universal healthcare, and from a perspective entirely divorced from political considerations, the passage of Obamacare would be a vital step forward. But whether or not the provision of healthcare coverage for millions of Americans is “good” or “bad” is not the question here.
The question is whether or not the mandate is legal under the Constitution of the United States. Unfortunately, it looks more and more like it’s not.
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