Posted on 05/23/2012 2:02:31 PM PDT by jazusamo
As we come closer to finding out the Supreme Court’s disposition of the constitutionality of the Patient Protection and Affordable Care Act (the PPACA), and, in particular, its individual mandate (which requires virtually all adult Americans to purchase health insurance or pay a penalty), there is an increasingly anguished lament coming from the left of the punditocracy and the political class.
There is palpable fear that the Court will (as it should, in my opinion), declare the individual mandate unconstitutional, and thereby undo the signature achievement of President Obama’s administration.
Perhaps, most notable is the New Republic’s distinguished court commentator, Jeffrey Rosen, who recently declared that if the Court throws out the individual mandate, it is likely to presage the return of “a series of legal doctrines that have been dormant since the New Deal but which judges could use to dismantle the post–New Deal regulatory state, including economic regulations, health and safety laws, and environmental laws.”
Similar comments to Rosen’s have been voiced by politicians, such as Senator Leahy, and the President himself has hinted that it would be completely improper for the Court to fail to give support to a measure such as the PPACA which was passed with broad Congressional support (whether it actually was or not).
There is a general feeling that if the Court does declare the individual mandate (or maybe even the entire PPACA) to go beyond the Constitutional bounds, the firestorm of criticism will make the reaction to Bush v. Gore look tame by comparison.
In the face of this disappointing attempt to intimidate the Court, and, in particular, its Chief Justice John Roberts and its perpetual swing voter Anthony Kennedy, it will take some courage for the Court to do what is Constitutionally correct, and we can only hope that courage is forthcoming.
The individual mandate of the PPACA is the boldest attempt yet to dramatically expand the reach of Congressional power. And, simply stated, no one has been able to explain how, if the Congress can do this, any limits remain on its power. The Government attorneys defending the PPACA at the recent Supreme Court arguments were not able to limn any such remaining limits, and this is because there are none.
Still, there are few clearer principles in the Court’s recent jurisprudence regarding the commerce clause than that there must remain some limits on Congressional power, and that the primary police power (the basic law-making ability) must remain with the states, and not with the federal government. Our original break with Great Britain was over the issue of untrammeled legislative power, and for the Supreme Court to fail to maintain the limits on Congressional authority would be to return us to an era of all-powerful government. Lodging such power in Congress would inevitably lead to other abuses, and other restrictions on individual freedom.
To strike down the individual mandate or the PPACA would not (as Rosen, Leahy and the President suggest) be improper judicial activism. Instead, it would simply be the implementation of the oath the Justices take to uphold the Constitution.
There is no threat that I can see to “economic regulations, health and safety laws, and environmental laws,” which the Court or the lower federal courts have already quite clearly upheld. The PPACA was the first time that the Congress sought to use its interstate commerce regulatory power to compel Americans to participate in commerce, rather than as a tool to regulate those already in the marketplace. It is an abuse of that power, and should be curtailed.
The heavens will not fall if the Court takes this sensible step, and future generations will quite likely be grateful to the Justices who do so.
Editor’s Note: Stephen B. Presser is the Raoul Berger Professor of Legal History at Northwestern University School of Law, and a Professor of Business Law at Northwestern’s Kellogg School of Management. He was a signatory to two briefs filed in the Supreme Court urging the unconstitutionality of the PPACA.
Good for him to take wind of the sails of the huffing and puffing from the Left.
We didn’t have Obamacare before we had it, and we were just fine.
We didn’t have Obamacare before we had it, and we were just fine.
The left is clearly attempting to intimidate the Supreme Court with it's specious 'concerns' and Obama's narcissistic comments about the court engaging in 'activism' by striking down his Big Achievement.
I pray that these crude attempts to influence the Supreme Court Justices to find a way to keep Obamacare intact will backfire, piss off the Justices and ensure that they rule the PPACA mandate unconstitutional, which it clearly is.
Should the Court rule to allow this unconstitutional law to stand, not only will it destroy our access to health care by putting that access in the hands of government bureaucrats but will give congress the power to regulate any activity they chose. It would also destroy the Supreme Court's credibility as an arbiter of constitutional issues in the laws congress writes and with that, its reason for existing, not to mention the public outcry that would rightly ensue should Obamacare be permitted to stand. For the Supreme Court, it would be a form of suicide. For Americans, it would be a big step toward a totalitarian government with unlimited powers of coercion. A very dark day for America that I pray does not come to pass.
The Dems bulled this through when they controlled both Houses and now Obama is trying to bull this through SCOTUS with the help of jerks like Leaky Leahy.
Like you I dearly hope this will be shot down by a large majority on the court, at least a 6 to 3 decision.
I agree and I also think if it’s not struck down, our healthcare system will become a joke.
I’ve little doubt you’re correct.
If it’s not struck down health insurance as we know it will be a thing of the past.
Our health system will become a joke like Canada’s and Britain’s, only the very wealthly will be able to afford the best care.
You’re correct. If the Supreme Court upholds Obamacare, it will greatly diminish its own authority, and its not just the conservative Justices recognize this. Imho, its going down by a margin greater than 5-4.
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If Bamcare survives, our republic is dead. It is that simple.
“Our health system will become a joke like Canada’s and Britain’s...”
Worse actually. Britian and Canada still allow private insurance to be bought. I believe Obama’s monster does not. Everyone MUST go through the government exchange.
Nice to see your pings again, Tex! Thank you.
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When is the ruling supposed to come out?
To ALL: My opinion is that all stop using the term Obamacare. What care does it grant? Start calling it Obamadon’tcare HA! (Actually not so funny in reality!) Or how about ObamaDon’tCare&Tryin’ToTakeAwayCare
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