President Obama raised a fire storm when he recently seemed to challenge the Supreme Court's power to declare the health care law unconstitutional. He said: "Ultimately, I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress." Republicans chided Obama, a former Constitutional law professor, for forgetting about Marbury v. Madison, which established the Court's right to declare federal laws unconstitutional.
It is true that since the Marbury decision in 1803 until 2002, the Supreme Court has found federal laws unconstitutional 158 times. In the last 10 years, its have exercised that power in 14 additional cases (see discussion below) for a total of 172. The justifications for doing so fall generally into three distinct categories.
First, the Court has declared many federal laws unconstitutional because they infringe upon individual rights protected by the Constitution, particularly by the First Amendment. Two years ago, the Court invalidated a federal law that criminalized the commercial creation, possession and sale of films or videos depicting animal cruelty in United States v. Stevens. That same year, the Court decided the Citizens United case, which struck down a provision of the Bipartisan Campaign Reform Act prohibiting independent electioneering expenditures by corporations and unions. Two other provisions of that law were also struck down since 2002. In the last 10 years, the Justices also invalidated two federal laws restricting access by children to material on the Internet. It also invoked the Second Amendment in striking down a District of Columbia law restricting access to guns in the home, in the famous Heller case.
The power of the Supreme Court to protect individual rights from Congressional encroachment seems unquestioned. That surely is its prime function, to ensure that the other branches of government do not violate the Bill of Rights protecting the people.
A second category of cases involves the Court's function as arbitrator among the branches of government. One of the key protections of freedom in the Constitution is the structural separation of powers among the three branches. Congress must pass laws, the president must execute them, and the courts must interpret those laws. If one branch encroaches on the authority of others, there is a danger that such encroachment will upset the balance of power between them and increase the possibility of one branch dominating the others. Thus the Court acts as the umpire, not calling balls and strikes, as Chief Justice Roberts stated during his nomination hearings, but insuring that each branch stays on its own turf, as Sen. Sam Ervin once said in an argument before the Court. Thus last year, the Court invalidated a provision of the Sarbanes-Oxley law that restricted the president's power to remove members of an investigatory board created under that law.
The third area involves the most questionable use of Supreme Court power. The Court assumes the power to say to Congress, not that it violated anyone's rights or that it passed a law that crossed the line that separated one branch of government from another, but simply that Congress lacked the power to act. States have the power to pass any law they choose (subject to both state and federal constitutional restraints). But when Congress passes a law, it must rely on specific grants of power contained in Article I, Section 8 of the Constitution.
From the start, the Supreme Court held that these grants must be broadly interpreted. Chief Justice John Marshall wrote in the early case of McCulloch v. Maryland: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." Marshall also insisted on a broad reading of the Commerce Clause of the Constitution. That clause gives Congress the right to "regulate Commerce ... among the several States." In one of the earliest cases dealing with Congressional power under the Commerce Clause, Gibbons v. Ogden, Marshall wrote that the Commerce Power "is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution."
From time to time, the Court has inserted limits on Congress' commerce clause power. In the later part of the 19th century, the Court did so in order to protect the rights of business that bristled at the efforts of Congress to regulate their actions. The Court once held that Congress could not apply the antitrust laws to the manufacturer of goods before those products crossed state lines. But Oliver Wendell Holmes rejected that analysis in a later case in which he held that Congress could regulate any activity that fell within "current of commerce among the states."
In the 1930s, the Supreme Court struck down a number of the New Deal laws on the grounds that the activities restricted by the laws affected interstate commerce only "indirectly." Those decisions were subsequently overruled by a series of cases in the 1940s. In one of those cases, Wickard v. Filburn, the Court held that if a single farmer exceeded his acreage allotment and fed the excess grain to his own cows, Congress could still regulate that activity. Such actions affected interstate commerce since, if other farmers took the same action, that would reduce demand for grain in the national market, which Congress was trying to increase in order to aid farmers.
We are now in the third phase of restricting Congressional power under the Commerce Clause by imposing limits on that power that simply do not exist in the words of the Constitution. In the 1990s, the Supreme Court held that Congress can only regulate commercial activities that "substantially affect interstate commerce." No such limit had ever been found necessary in any case after the 1930s. Thus, based on this new approach, a federal law that protected women from domestic violence was struck down since such violence was not an "economic activity," even though such violence had a severe effect on our economy.
Now, based on the questions asked during oral argument on the constitutionality of the health care law, the Court seems to be concerned that Congress may have exceeded its power in passing the "individual mandate" provision in the law. The opponents argued that Congress was regulating "inactivity." But the correct analysis is to view the individual mandate as simply one part of the "current of commerce," as Holmes did. The Court should ask if and how the regulated activity affected the national market in health care, as it did in the Wickard case.
Two of the most conservative appellate judges in the country, Laurence Silberman (of the District of Columbia Circuit Court of Appeals) and Jeffrey Sutton (of the Sixth Circuit) had no trouble upholding the law in cases brought before them, rejecting the argument that Congress cannot regulate "inactivity." Judge Silberman wrote: "If Congress can regulate even instances of purely local conduct that were never intended for, or entered, an interstate market, we think Congress can also regulate instances of ostensible inactivity inside a state." Judge Sutton was a leading exponent of states' rights, and argued a number of important cases on that issue before the Supreme Court. Nevertheless, in his concurring opinion upholding the constitutionality of the health care law, he upheld the health care law against the claim of states' rights, echoing the words of Chief Justice Marshall:
"Does the Commerce Clause contain an action/inaction dichotomy that limits congressional power? No -- for several reasons. First, the relevant text of the Constitution does not contain such a limitation. To the extent "regulate," "commerce," "necessary" and "proper" might be words of confinement, the Court has not treated them that way, as long as the objects of federal legislation are economic and substantially affect commerce."
President Obama was correct in urging the Court to interpret the Constitution as it reads, giving Congress the broad power to regulate interstate commerce in all its phases, as Chief Justice John Marshall, Oliver Wendell Holmes and other conservative judges have urged.
Leon Friedman is a Professor of Constitutional law at Hofstra Law School. He is the editor of, and contributor to, "The Justices of the United States Supreme Court: Their Lives and Major Decisions" to be published in November.
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An actuarial risk is like any other risk faced by a company, commonly divided into known unknowns and unknown unknowns. This risk can be estimated and the cost incorporated into the company’s prices. For something to be a risk, it must, as a minimum, have a connection with the company. An uninsured is of no risk to the insurance company because there’s exactly zero percent probability of the insurance company having to pay the uninsured an insurance sum. If the insurance company increase the pool of insured, its risk will become more predictable, which will tend to lower its financing cost and achieve scales of economies, etc. But the individual not before in the pool didn’t become a risk until he or she became a customer. The individual mandate is a mandate for you to become a customer of the insurance company so that the insurance company can lower its operating cost. This isn’t regulation of commercial activity, but subsidization. Put in another way, each citizen is mandated to bailout the insurance companies to the tune of $5,800 per year.
From the beginning, the proponents of ObamaCare, certainly President Obama himself, must have realized that the act was the unconstitutionality. It was a legislative gamble, betting on the ideologically inspired and the appeasers of the Supreme Court.
(*) The typical ObamaCare backer would support abolishing this parental duty, I just know it.
If healthcare and health insurance are not "commerce", then there must have been ways, prior to the law in question, for those who did not wish to participate in the healthcare system to have completely opted out. Suppose it's 2007, and I don't wish to engage in this nasty healthcare "commerce", so... where do I go, and what forms do I sign in order to remain outside of the system, i.e., to notify everyone running up to me after I collapse in the mall during a heart attack to just leave me there, writhing, because... well, I wasn't gonna let the *government* force me to engage in commerce?!?
We're ALL engaged in the commerce of healthcare whether we wish to be or not, obviously. It's not the evil Democrats who've made it so. BIRTH has made it so!
The bottom line is that it's absurd to think of healthcare as "commerce" in the same way that typical goods and services are commerce.
The problem is, though, that good intentions can't make an unconstitutional law constitutional. Here, we would have to make a new amendment to the Constitution in order to make the Affordable Care Act legal. But we all know this isn't going to happen, despite the fact that the "law that was passed by a strong majority of a democratically elected Congress". The majority wasn't that strong...
At least three years wasted, and further delays for millions of people waiting for access to proper healthcare. And this is sad, because President Obama, as an old Constitutional Law professor and Harvard law student, should have know better.
The year 2007 example perfectly exemplifies the government's argument. It needed a little help from the leftist justices, though. Good thing they are trained in the Socratic Method, but General Verrilli was a good student and eventually came to a realization. So, your hypothetical displays the government's core position very well. However, I don't agree it's a valid argument.
First of all, there's no need to fill out a form or call an automated phone line. All you have to do to not be in the health care insurance market is: Nothing.
If I walk into a city mall (having done absolutely nothing about health care) and slips and breaks my leg, then the moment the store manager calls 911, I'm entering the stream of commerce.
If I'm a wealthy enough individual, I will be able to pay the cost. This is the group of people the government doesn't like to talk about. Instead, they like to talk about the group of people that does nothing and can't pay.
Let's think about this for a moment. Why can't these people pay? There are two main reasons: (1) They are poor, or (2) they can't get access to the health care insurance market because of e.g. a preexisting condition.
Point (2) is a purely regulatory issue. The government could go as far as subsidizing the insurance companies, but more likely, it's a matter of deregulation and lowering barriers for companies to enter the health insurance market. Keywords: Less bureaucracy and regulation. On the other hand, there should be severe penalties for insurance companies robbing people of health care insurance e.g. a person dies because he was denied coverage by reason of a minor technicality. So, some regulation need to be put in place to control the insanity of a complete free market. Bottom line, though, these are all regulatory issues.
Point (1) is a purely social issue. It's completely within Congress's power to allocate tax revenue to the poor to pay for health care.
According to the oral argument, the government’s argument is built on two premises. Firstly, healthcare insurance is inextricably related to healthcare and by far the most common method of ensuring healthcare. Since everyone is in the healthcare market, by definition, they are also in the healthcare insurance market. So, the government’s argument incorporates a logical jump b/w healthcare and healthcare insurance; the effect is collateral constitutional damages because (a) not everyone is in the healthcare market and (b) even fewer people is in the healthcare insurance market. Justice Kagan, as sekundant for General Virello, conceded, as the second logical jump, that some regulated individuals weren’t in the healthcare market, but that it would be a matter of time before they would be, which only increases the collateral constitutional damages. But who cares…
Secondly, the young individual w/o healthcare insurance is an actuarial risk because this individual may someday need insurance, which someone else has to pay for if the individual don’t have insurance. Not enough time was spent on what exactly is an actuarial risk. Justice Kennedy did ask the question, but no one was able to provide a satisfactory answer; attempted answers went nowhere. And here comes Justice Ginsburg whose role it’s to reform the American mind: “Your choice is going to affect others in a major way”; maternalistic feminism when most nauseating.
Being in the marketplace isn’t the same as participating in marketplace. Being in the marketplace takes more than physical presence. It takes a desire to purchase/sell, production, or other form of commercial activity. A look at the commercial substance of some of the most famous Commerce clause cases shows that controversies, literally, occurred in the commercial context or at least with an odor of commercialism: Gibbons (1824)-Steam ship operator, Cooley (1851)-Ship pilot, The Daniel Ball (1871)-Steam ship operator, Hammer (1918)-Child labor, Baldwin (1935)-Milk producer, NLBR (1937)-Labor in manufacturing, Barnwell Brothers, Inc. (1938)-Highway truck owner, Darby Lumber Co. (1941)-Labor in manufacturing, Wickard (1942)-Wheat producer, H. P. Hood & Sons, Inc. (1949)-Milk producer, Katzenbach (1964)-Restaurant owner, Hicklin (1978)-Labor in the oil and gas industry, Lopez (1995)-Gun-Free School Zones Act (held unconstitutional because not related to commerce), and Gonzales (2005)-Cannabis producer (for home use), and In Department of Health and Human Servs. (2012)-Uninsured individual. In all but two cases, we are dealing w actors participating in the commercial market. If the exception is the rule, then Lopez (1995) showed that there’s a limit in Commerce clause jurisprudence.
Justice Kennedy, though, touched on the issue briefly when he characterized the mandate as a sharp diversion from the Common Law rule of no affirmative duty to act; absent some special relationship e.g. the parent’s duty to rescue its child in peril (*). Sadly, it wasn’t touched on more, because it’s the real chilling part. READER BEWARE, USING SOPHISTRY, YOUR GOVERNMENT IS CHIPPING AWAY AT YOUR AUTONOMY AND INDIVIDUAL FREESOM. As Justice Kennedy put it, the individual mandate changes the relationship b/w the individual and the government in a “unique way.”
The Constitution is a contract between the people and the federal government. In it the people grants the government certain enumerated powers. Its purpose is to “form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the General welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” The regulation of commerce, as an example, helps promote “domestic Tranquility”, but there’s no commercial activity involved in the individual mandate (it takes at least two logical leaps to make it commercial activity). Justice Breyer made the terrifying suggestion that we, as human beings, by proxy through the healthcare market, are born into the healthcare insurance market. This is a radical view, and I couldn’t help wonder whether “our Posterity” is just one leftist, activist Justice away from becoming enslaved by its government or as it would like to be addressed: Master.
It isn’t correct to say that the individual mandate is analogous to Wickard because in Wickard, the farmer was engaged in a commercial activity, the production of wheat, whereas the individual’s decision not to purchase healthcare insurance could be based on purely non-commercial reasons e.g. “I never thought about healthcare insurance” or “it never crossed my mind to purchase healthcare insurance because my dad is a primary physician”. It isn’t correct, as noted by Justice Sonia Sotomayor that the individual made a choice because that may or may not be the case.
The inactivity argument, surprisingly enough, didn’t occupy the justices very much. Mostly, because the government isn’t arguing that Congress can regulate inactivity. Not even the most radical advocate of ObamaCare will go that far. Instead, the proponents have embarked on a mission to define certain inactivity as activity, which is different. The quote by Chief Justice Marshall does nothing to dispel this because the “action/inaction dichotomy” is in the universe of “economic and substantially affecting commerce”, which implies a foundational activity that’s economic and commercial in nature.
http://www.federalistblog.us/2011/06/how_commerce_was_regulated/
And regardless of one's opinion on 'Obamacare' or political leanings, it must be said that any reasonable person, after reading that history, will see that, were the Court to invalidate this law, it would be a significant departure from precedents that have been in place since the 1930's.
It's interesting to see conservative thinkers -- often constitutional strict constructionists, who've for decades been lamenting the lack of "judicial restraint" -- arguing that Congress, by passing a law regulating the healthcare MARKETS among states, has somehow overstepped its authority. In fact, since oral arguments, it's been fashionable to ask "what's the limiting power on Congress? If Congress can do this, what CAN'T it do?!"
But look at the Constitution: "Congress shall have the power... to regulate Commerce with foreign Nations, and among the several States... and, [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers...."
Given that clearly very broad power, then isn't the better question really this: if our federally elected representatives CANNOT regulate what is clearly a national healthcare crisis and national economic problem, then what CAN Congress do?
I don't think the conservative justices want to be on thew wrong side of history. There's no going back.
Not sure it's "clearly" a crisis, and it's definitely not the economic problem this nation is facing. Sounds to me like some liberal manufacturing!!!