03/22/2012 08:47 am ET Updated May 22, 2012

For Justices Who Act as "Umpires," Constitutionality of Health Care Reform Is a Simple "Yes"

"The doctor begins to lose freedom... So a doctor decides he wants to practice in one town and the government has to say to him, you can't live in that town. You have to go someplace else. And from here it's only a short step to dictating where he will go... From here it's a short step to all the rest of socialism... And pretty soon your son won't decide, when he's in school, where he will go or what he will do for a living. He will wait for the government to tell him where he will go to work and what he will do."(Ronald Reagan, 1964, opposing the creation of Medicare).

It all happened exactly like Ronald Reagan said it would, didn't it? I, for one, sat around at home waiting for the government to tell me to go to medical school, and then waited again for it to tell me where to do my internship and residency, what fellowship to take, and where to take it.

Despite then-judge Roberts's assurance during his confirmation hearings that he would serve as merely an "umpire," he and his fellow Federalist Society alumni overturned 100 years of settled law in Citizens United v FEC, that neither plaintiff nor defendant argued or asked them to reach, transforming our elections into a farce in which the key qualification is finding a willing billionaire.

Thus, all predictions about what this Court will do in the case brought by the Attorneys General against the Affordable Health Care Act ("AHCA") are fraught with the uncertainty that a capriciously-acting Court engenders.

One can say, however, what an "umpire" would do. If the umpire rejects reasons such as "standing" and "ripeness" to postpone, and instead says, "play ball," then it should not take long to recognize that the attorneys general have, already, conceded the outcome based on their following pre-game admissions:

1. Health care is part of the national economy;
2. The federal government has the power to compel an individual to purchase insurance when he/she is consuming healthcare services; and,
3. People who do not have insurance raise premiums for those who do buy insurance.

Where, then, is there constitutional daylight for the attorneys general to argue? If health care is a national market, it can be regulated by Congress. If the federal government can compel an individual to purchase insurance when he/she is consuming healthcare services, then the argument that the government cannot mandate a person to purchase a privately-offered product is thrown out the window.

The only question left is whether that same federal government can compel someone to purchase that privately-offered product at any time or only when that person is consuming healthcare services. The Congress found, and no plaintiff disputes, that those who do not have insurance raise the premiums of the insured regardless of whether the insured, or uninsured, are at any given moment actually consuming those services.

With each pitch right down the center of the plate, an "umpire" would, therefore, simply tell the attorneys general "3 strikes, you're out."

That should be the end of it, but it is perhaps worth noting that the Amicus Curiae (friend of the Court) brief filed by our good friends at FreedomWorks and the Health Savings Accounts Coalition ("FreedomWorks") actually strengthens this argument, not by its admissions but by its omissions.

The FreedomWorks brief makes just one constitutional claim -- that the move from "regulating" to "directing" commerce is a sea-change in the balance between individuals and the government. They cite four cases -- two are not commerce clause, but police power, cases involving firearms near a schoolyard and sexual crimes. The other two are commerce clause cases that deal with voluntary commerce, but deliberately omit the key case -- Willard v Fikburn -- that established that even small acts such as a single farmer growing his own wheat could be regulated (prevented from growing or burned if grown) even if it were grown just for his own use. The Court stated that many small acts such as that could, in the aggregate, impact the market that the Congress sought to regulate.

Most importantly, beyond this statement and case citations (without any comment) the FreedomWorks brief spends the remainder of its 28 pages arguing the benefits of Health Savings Accounts, none of which are even remotely relevant to a Court. To return to the Chief Justice's "umpire" analogy, FreedomWorks is arguing that it does not like the new rules, and that the new rules ruin the game -- matters they should be taking up with the committee that sets the rules, not with the "umpire" on the field.

FreedomWorks makes false claims from which it then retreats in its own brief, suggesting a Mitt Romney hand in all this. It first tells the Court that the Act limits patients' choices because all the insurance plans on the state exchanges must meet certain federal standards, somehow confounding this with robbing a patient of his/her choice of doctor or hospital or medicine. (Brief, p. 4-5).

In the political arena, a false claim like this goes unqualified, especially on Fox, and is repeated throughout the right wing echo chamber to strike fear into those they enjoy manipulating.

But, perhaps even FreedomWorks attorneys care, a bit, about their reputation in front of the nation's highest Court. So, they then admit this: "Plans which do not meet those specific criteria may be sold outside the Exchanges, but individuals purchasing these plans will not be eligible for the subsidies provided for under the Act." (Brief, p. 6)

So, to summarize, under the Affordable Health Care Act, the US government will provide subsidies to people who cannot otherwise afford health care insurance so they have coverage, so long as those subsidies go to a private plan that meets certain criteria, but anyone else can buy any plan they wish.

If that is not liberty-crushing fascism, I don't know what is!

The FreedomWorks brief is permeated with comments about the absence of the widest conceivable choices being a limitation on liberty. That is, strictly speaking, true. It is also complicated -- do the subsidized health care purchasers have more or less liberty when they now can afford insurance, but without the AHCA could not, and thus had no "liberty" to buy anything?

But, even more importantly, when our forebears signed us up for the Constitution, they empowered Congress to create all kinds of rules and regulations that limit the universe of possible choices (FreedomWorks definition of liberty) to achieve what the people who elect them perceive is a greater good, with limitations on the universe of actions that the Congress itself can take. The First Amendment provides the right to free speech -- but a law preventing you from shouting fire in a crowded theater is a reasonable restriction on that right to protect me from being stampeded to death.

When Constitutional rights are involved, the Court applies the doctrine of "strict scrutiny" to weigh whether the restrictions are reasonable, narrowly-drawn, and the end is a compelling government purpose.

Although not using the words specifically, the entire FreedomWorks brief appears to be asking the Court to apply the doctrine of strict scrutiny to healthcare.

Could it be that FreedomWorks considers health care to be a constitutional right? Will Justice Thomas, for whom this brief was clearly written, apply "strict scrutiny" to healthcare? Now, THAT would be Constitutional earthquake!

One cannot predict what Chief Justice Roberts and his other conservative brethren will do. Despite all the vitriol and lying about the Affordable Health Care, if the Chief Justice and his colleagues act as "umpires," the constitutionality of the individual mandate is an easy call: