June 9 2011

ObamaCare: This is Why We Have Judicial Review

Hadley Heath

ObamaCare opponents are cautiously optimistic today after a panel of three judges in the Eleventh Circuit Court of Appeals took U.S. Solicitor General Neal Katyal to task in Atlanta yesterday over the limits of federal government power.  Mainly, reports from the courtroom indicate that Katyal and his team were unable to clearly define any limit to the powers of Congress, should the Affordable Care Act stand.

A few differences from the Fourth Circuit (the appellate court deciding the Liberty University case and the Virginia case): It seems that the panel of judges in Atlanta will not concern themselves with the distinction between "activity" and "inactivity" as much (and will focus instead of whether the failure to buy insurance is an "economic" activity).  And, this panel doesn't seem likely, at least from the oral arguments, to call the individual mandate a tax.  Suspicion is that the Fourth Circuit may deem it a tax.

Carrie Severino, a friend who works over at the Judicial Crisis Network has her analysis up at NRO.  She explains a few shortcomings from the side of the appellants (in this case, the federal government):

Katyal's argument runs into problems on several levels. One of his major points amounts to switching the default assumptions about activity. He repeatedly stated that the case isn't about a failure to buy a product, but a failure to pay for it. But he never actually shows that people buy the product. Instead he assumes they will because they "can't guarantee they won't need health care." Of course that puts the burden of proof completely backwards.

The Affordable Care Act makes a lot of assumptions about people.  That's because it's a top-down, one-size-fits-all approach.  The defense of it necessarily must focus on the "aggregate" effect on the economy, or the majority of people, or the average, because that's the approach the law takes.

Even if this were the best approach - even if boiling health care down to the least common denominator through massive subsidies, skewed incentives, and even inevitable de facto rationing was what the American people really wanted - we could do it that way.  We could amend our Constitution to give Congress the power to impose this kind of mandate.  But we didn't do that.  We didn't have a public debate about it (before-the-fact).  We have a mechanism in place for changing our Constitution, and our policymakers deliberately disregarded that process so that they could take the path of least resistance and award themselves a new power with the passage of this law.

But don't get depressed.  This is why we have judicial review!  But as Ilya Shapiro eloquently pointed out in his analysis, judicial review is only the means to a higher end:

This legal process is not an academic exercise to map the precise contours of the Commerce Clause or Necessary and Proper Clause - or even to vindicate our commitment to federalism or judicial review. No, all of these worthy endeavors are just means to achieve the goal of maximizing human freedom and flourishing. Indeed, that is the very reason the government exists in the first place.

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