ObamaCare 2 to 1 in the Courts

So far it's two to one. Two federal judges in District Courts have ruled that ObamaCare is constitutional. Today a federal judge in Virginia announced the opposite conclusion. U.S. District Judge Henry E. Hudson ruled that Congress lacks the power, under the Constitution, to compel citizens to purchase health insurance.

I confess that this case strikes me with the force of a mother-in-law joke (if she drives off a cliff in your Ferrari, is that good news or bad?). First the bad news: I am a judicial minimalist. I don't think that courts are the best place to make public policy. I'll grant you that Judge Hudson would say that he is only ruling on the law and not on the wisdom of the policy. If, however, his opinion is sustained by the High Court, it will inevitably lead to more cases and the courts will in effect be compelled to make new law as they specify Congress's authority in this realm.

Now the good news: I have sympathy with my conservative friends who think that Congress exercises powers beyond the imagination of the founders. If Congress can compel me to purchase health insurance because it deems this to be in the national interest, can it forbid me to grow vegetables in my back yard on the grounds that this hurts the national farming industry and thus depresses the economy? You might want to know that the answer is yes, according to precedent.

If the Commerce Clause really gives Congress the power to compel me to purchase a product from a private vendor, then that clause gives it the power to do pretty much anything not explicitly forbidden in the Constitution. So far as I know, there is nothing in the Bill of Rights about growing wheat or tomatillos.

It's pretty clear that the Administration is making a dangerous argument. In an interview, President Obama vociferously insisted that the insurance mandate was not a tax. Now his delegates are arguing that it is in fact a tax and thus justified under the tax power. In case A.I. is still reading: Obama was lying then or he is lying now. If the tax power gives Congress the authority to penalize me for doing or not doing whatever it wants me to do or not do, well Houston, we have a problem.

For most of our history as a nation, the Courts have allowed Congress to do pretty much whatever it saw fit, so long as this did not violate some explicit prohibition in the Constitution, like the free speech clause. Only very rarely have the Courts taken seriously the idea of enumerated powers, i.e., that Congress has only such powers as are mentioned in the charter. In US v. Lopez (1995) the Court ruled that the Commerce Clause did not authorize Congress to regulate the carrying of handguns in the vicinity of a school.

I am skeptical that the Courts are in a position to put real limits on the powers of Congress on the grounds that this or that power was not granted. Lopez was a 5 to 4 decision, and when the Supremes finally weigh in on this one it will be 5 to 4 one way or the other.

Judge Hudson's opinion is not unreasonable. He isn't arguing that the explicit grant of powers in the Constitution severely restricts what Congress can do. He is only arguing that there are limits. The commerce and tax powers, and the Necessary and Proper Clause are very broad. They are not infinitely broad.

I like that idea. I just don't see how a consensus in the judicial branch is likely to form around it. Judge Hudson was a Republican appointee. The two judges who affirmed ObamaCare were not. Deciding big principles by five to four decisions is a recipe for disaster.

The insurance mandate is scheduled to come into effect in 2013, just after the next presidential election. That is clever politics. Maybe too clever. It may be an issue in 2012. The election would be a far better venue for the policy decision.

Comments

[hsr0601]

The Republicans are the ultimate hypocrites!

How do we pay for health care reform ?

**  How do you pay for tax cuts for the wealthy  ?

1.     First attempt : threatening Social Security and Medicare Cut through the deficit panel.

2.     Second attempt : holding the desperate Hostage, say, by the Ransom.

**  Inaction cost, $9trillion over the next decade, ((Some of CBO analysis : While the costs of the financial bailouts and economic stimulus bills are staggering, they are only a fraction of the coming costs from Social Security, Medicare, and Medicaid. Over the next decade, the Congressional Budget Office (CBO) projects that each year Medicaid will expand by 7 percent, Medicare by 6 percent, and Social Security by 5 percent. These programs face a 75-year shortfall of $43 trillion--60 times greater than the gross cost of the $700 billion TARP financial bailout)).

Over the duration of healthcare debate, using the preliminary cost analysis of CBO, the reps opposed the public option stubbornly, but after the release of final score, they have been defiant on the referee.

The nonpartisan Congressional Budget Office estimates that :
Inaction cost in relation to health care reform totals $9trillion over the next decade. 
Reform will reduce the federal deficit by $143 billion over the next 10 years and as much as $1 trillion during the following decade.

[duggersd]

hsr, health care is not a right. It is a product. Also, it does not matter if the costs are higher without the health care reform than with (although we have been finding this "reform" is actually costing much more than advertised). Just because you can decrease a cost (though apparently not true), if you violate the Constitution it is not worth it.
I suspect the guess of a 5-4 decision is a good guess. I am suspecting the swing vote in this case is Justice Kennedy. Interestingly, Kennedy is planning to stay around until 2013. Perhaps he does not want Obama to have the ability to put 1/3 of the justices on the court?

[Jimi]

hsr says, "The nonpartisan Congressional Budget Office estimates that :
Inaction cost in relation to health care reform totals $9trillion over the next decade. Reform will reduce the federal deficit by $143 billion over the next 10 years and as much as $1 trillion during the following decade."

You need to understand how the CBO scores these things to understand why this portion of your comment is completely off base, and why you will never be able to convince anybody to believe in these particular talking points. It is complex, but there is plenty of information about the process for you to get a better understanding....it would take alot of work and time to attempt to do it here....but it won't be that hard or you to get a grip on it on your own.

[Bill Fleming]

The good judge Hudson appears to have outsmarted himself on this one by dismissing the very issue he was supposed to be interpreting out of hand, thus rendering a whole portion of the Constitution null and void. His decision will most likely be dismissed by higher courts in recognition of his sheer "full of sh*tness."

http://volokh.com/2010/12/13/the-significant-error-in-judge-hudsons-opinion/

[William]

BF,

You need to read the criticisms below the post you linked to, I think this one sums it up nicely.

"If Congress does not have the Constitutional authority to effect the ends, then what difference does it make if it has the means to do so?"

[Bill Fleming]

I read them William. That doesn't change the fact that judge Hudson failed to address
the real issue, that his decision was based on a non sequitur, or that if you allow his
decision as precedent, you effectively nullify everything that Congress has done under
this clause: "To make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers, and all other Powers vested by this Constitution
in the Government of the United States, or in any Department or Officer thereof."

Big can of worms. Huge.

[William]

BF,

Hudson didn't "fail to address the issue", he neutered it. Virginia did not ask for radical therapy. Rather, it insisted that “all” Wickard stands for is the proposition that if a farmer decides to grow wheat, he cannot feed it to his own cows if a law of Congress says otherwise. It does not say that the farmer must grow wheat in order that the federal government will have something to regulate.

It is just that line that controls this case.

Personally, I would welcome a ruling that directly challenges the egregious abuse the courts have allowed Congress effect through the precedent of the Wickard decision. NOW, that people are beginning to recognize just how radically we've deviated from our Constitutional moorings, Wickard wouldn't pass the "laugh test"! However, THIS isn't going to be that case, nor does it need to be.

The opponents of the individual mandate say that they do not have to purchase insurance against their will. The federal government may regulate how people participate in the market, but it cannot make them participate in the market. For if it could be done in this case, it could be done in all others. NO area of human activity would be exempt from government control.

No precedent has to be overruled to strike down this legislation. On the other hand, to uphold it invites the government to force me to buy everything from exercise machines to fruits and vegetables, because there is always some good that the coercive use of state authority can advance.

By the way, apparently "Obamacare was passed without a severability clause", so it only takes one win on the Supreme Court to nullify the entire bill.

[William]

Big can of worms. Huge.

[KB]

Bill: can Congress compel you to wear purple socks? If not, then Hudson has a point. If we have a limited government, then it has to be limited. Whether he has a coherent answer to the limits is a good question. See my more recent post.

William: again,I am with you.

[Bill Fleming]

KB, we've already established that Congress can compel me to buy insurance. That's what Medicare and Social Security are.

[William]

BF, I'd argue those are social programs, not "insurance" in any meaningful sense. However,in any case, they are funded by TAXES not "premiums and that's why the Supreme Court ruled them Constitutional. In the eyes of the Court, Congress can't force people to "buy" something, but Congress has the power to TAX for social programs.

That's why proponents are NOW arguing that payments to private insurance companies for policies, or penalties imposed for the failure to purchase are TAXES, which Congress can establish.

[duggersd]

Social Security is a program to offer some sort of a benefit after reaching a certain age. This is not insurance. Medicare is a program that allows people to have medical care after reaching a certain age. This is not insurance. Insurance is something that protects the insured against certain occurrences.