Commentary

The Heavens Will Not Fall If Obamacare Does

By Stephen Presser | May 23, 2012 | 11:58am EDT

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.

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