March 26 2012
The Supreme Court begins oral arguments today on the most consequential case of our lifetimes: whether the Affordable Care Act is constitutional. I’ve been recalling the incredible tension that surrounded the high court’s decision to take on Bush v. Gore.
But that case only decided who would win a presidential election—this case will decide what kind of country we have. This ruling affects something much larger even than a system of health reform that has appropriated a sixth of our economy.
Writing last year about the case, Robert A. Levy of the Cato Institute captured what is at stake:
Soon the Supreme Court will be asked to weigh in on perhaps the most important question of the post–New Deal era: Are there any remaining limits on the breadth and scope of federal power?
As we move into a week in which we will all be thinking about the Supreme Court, Paige Winfield Cunningham, who covers Congress and national politics and health care issues for The Washington Times, makes an interesting point about our ability to predict the outcome:
A curious thing about this week’s Supreme Court hearings on President Obama’s health care law is that while nobody doubts how the four Democrat-appointed justices will decide, there is no such certainty on how the Republican appointees will rule in the case, which will go a long way toward defining the scope and limits of government power in the 21st century.
For the past 70 years, liberal-minded justices have taken more uniform views of how far federal power extends while the lines are much more jumbled when it comes to conservative jurisprudence, court watchers say.
Cunningham has a good analysis of the opinions on relevant, earlier cases of the conservative-minded justices. The chilling thought is that the powers of the federal government are already so vastly expanded that one or two of these justices might find precedent for upholding this law.
If it is upheld, however, there is almost no end to what the federal government can do. John Steele Gordon notes on the Commentary blog notes:
The mandate, forcing individuals to participate in commerce, is a breathtaking enlargement of federal power under the commerce clause. If Congress can mandate this under the commerce clause, what can’t it mandate? Can we be required to buy certain types of automobiles (about the only way the Chevy Volt, it seems, can be a commercial success)?
Gordon proposes that, if the mandate is upheld, Congress could, say, force us to buy Treasury securities, which amounts to forcing us to loan the government money. The Romans used such forced loans to pay for war (I bet we would use them for entitlements?), though the English balked, and, as a result, Charles the First found his power curtailed by Parliament.
Economics columnist Robert J. Samuelson suggests that we are in the constitutional crossroads because of one man’s desire to ensure a place in history:
Considering the ACA’s glaring — and predictable — economic and political shortcomings, why did Obama make it his first-term centerpiece? The answer seems to be his obsession with securing his legacy as the president who achieved the liberal grail of universal coverage. In his book “The Escape Artists: How Obama’s Team Fumbled the Recovery,” Noam Scheiber recounts a telling incident. Obama’s advisers tell him he can be known for preventing a second Great Depression. “That’s not enough for me,” Obama replies.
The ACA is Obama’s ego trip, but as a path to presidential greatness, it may disappoint no matter how the court decides. Lyndon’s Johnson’s creation of Medicare and Medicaid was larger, and he isn’t deemed great. And then, unlike now, government seemed capable of paying for bigger programs.
One more point: Most of the discussion of the case has revolved around the Commerce Clause and the Constitution. Citing a paper from the Institute for Justice, a libertarian think tank, George Will suggests another approach: a contract is void if done under duress; if we are forced to contract for health insurance under the mandate, just how valid is our agreement with the insurance company?
IJ correctly says that if the court were to ratify Congress' disregard for settled contract law, Congress' "power to compel contractual relations would have no logical stopping point."
Which is why this case is the last exit ramp on the road to unlimited government.