The Nitty Gritty Details Of Obamacare
On April 18, 2012, 12:07 AM by Nima Desai
After an exhaustive media frenzy, the three-day oral arguments regarding Obamacare – or the Patient Protection and Affordable Care Act (PPACA) – are now over, and many eagerly await the Supreme Court’s ruling in June. To help pass the time, here’s an easy-to-read primer on the issues that the justices will brood over for the next two months:
Understanding the legal arguments
In essence, there are two ways to tackle most Constitutional questions: practically or theoretically. The practical way looks at the problem first to see if the Constitution can accommodate the proposed solution. A good example of this method is the process of adopting the familiar Civil Rights Act of 1964.
Events like this often begin with large-scale social upheaval and debate, and end with Congress drafting an equally large-scale federal solution. As an occasional consequence, constitutionality may be an afterthought. And constitutional arguments in favor of a federal solution require creativity and, at times, strong improvisational skills on the part of so-called liberal “activist” judges.
Given the complex relationship of commercial activity with many social, economic and governmental institutions, federal officials have used the right of the Congress to “regulate Commerce with foreign Nations, and among the several States” to facilitate social change and respond to various crises. This particular clause justified massive new federal programs and the development of many innovative policy mechanisms during the New Deal, as well as the Civil Rights Act of 1964.
Though the Commerce Clause limits Congress’ power to interstate commercial activity only (between states) and not intrastate activity (within a single state), the definition of interstate commercial activity is extremely broad and, as such, its interpretations are equally wide.
On the other hand, theoretically-minded conservative justices examine the means first–not the ends. They look at the esoteric, academic, constitutional issues and, to them, the US Constitution is the Ark of the Covenant. Legal arguments for a federal solution to a national problem or crisis must be elegant and fit easily within the framework already created by past legal precedent if they are to be considered worthy of a seal from the Supreme Court.
Defining the Powers of Congress
Just as a single drop of water can create an elaborate ripple effect, essentially any activity can fall within the sweep of the Commerce Clause. The following cases help to elucidate on the limits of interstate commercial activity:
Wickard v. Filburn (1942):
While an old case, it’s still a significant one. In the midst of the Great Depression, the federal government ordered a farmer to destroy his own crops. Although he was growing wheat for private consumption and not for sale, the Supreme Court held that he had to destroy his own wheat because his private use had an effect on national wheat prices, which the federal government was trying to regulate.
Since his wheat never entered into the stream of commerce, much less interstate commerce, the farmer argued that he was not subject to federal regulation. The US government successfully argued that if he did not consume his own wheat, the farmer would have to buy wheat on the open market, and therefore his actions affected interstate commerce.
The government’s argument is definitely complicated, but the key is that the commercial effects of home consumption were compounded for all the wheat growers across America. And it is just that compounding effect of private activity that makes this case very relevant to PPACA’s mandatory single payer healthcare system. How? The use of emergency rooms by persons with no health insurance, when compounded, costs American taxpayers about $10,000 per year. Yup, $10,000. The compounding societal effect of emergency room visits by the uninsured is what pulls the government and its citizens into private territory.
Wickard v. Filburn also shows its relevance via the private nature of growing your own wheat and eating your own wheat. This seems like the essence of the concept that home and hearth are sacred and outside of the government’s reach. Similarly, the human body and its upkeep are also distinctly private in nature, just like one’s home, farm, and daily meals.
So basically, if government officials ever came into your home to tell you that you couldn’t eat the heirloom tomatoes you’ve grown in your backyard, they ought to have a very good reason – like poverty, hunger, and economic turmoil a la The Great Depression.
United States v. Lopez (1995):
Over fifty years later, the Supreme Court began to place limits on the reach of the Commerce Clause. In Lopez, the Court considered the constitutionality of the federal Gun-Free School Zones Act of 1990.
The government’s main argument supporting the legislation was that the “business” of elementary, middle and high schools affects interstate commerce. The Supreme Court held that criminal law had no place under the federal Commerce Clause and therefore created a dangerous slippery slope, and the Act had to be re-written. Since criminal law is distinctly local in nature, a favorable decision would allow for federal regulation of any activity that might lead to violent crime.
But when you take a couple steps back, guns in schools doesn’t have much to do with commerce. Marijuana in California, on the other hand, is apparently different.
Gonzalez v. Raich (2005):
California is one of fourteen states that recognize the legal use of medical marijuana. However, federal law disagrees with these fourteen states and so agents from the Drug Enforcement Administration (DEA) decided to cause a scene in order to get the California law dubbed Proposition 215 struck down in federal court.
The DEA thought it had legal authority under the Controlled Substances Act of 1970, which did not recognize the medical necessity of marijuana and, in it’s opinion, trumped California state law. As such, the agents seized and destroyed marijuana plants from a private citizen and ultimately caused a lot of litigation.
The government argued that private production of marijuana had an effect on the interstate sale of marijuana under Wickard v. Filburn. Furthermore, it claimed that any exceptions would make the overarching federal regulation of illegal marijuana moot and thus hinder its effective enforcement.
Ultimately, the Court reasoned that the high demand for marijuana in the interstate market would draw medical marijuana into that market, and therefore frustrate the federal interest in controlling the illegal interstate production, consumption, and sale of marijuana.
So what do wheat, guns, marijuana, and health insurance all have in common?
In short, the relationship of these products to the stream of American commerce (and their case laws) provide several perspectives on the legal import of the Commerce Clause, the key issue of the oral arguments on Obamacare.
Legal precedent makes it clear that the Constitution provides for the regulation of interstate commerce. It also stipulates that a lack of regulation that frustrates a federal objective invokes the ability to create that regulation due to the co-dependent Necessary and Proper Clause.
The Necessary and Proper Clause gives the Commerce Clause its wings. Only when the regulation of interstate commerce helps relieve the frustration of a federal objective–such as wheat price regulation and federal drug policy–can a ‘Necessary and Proper Law’ be made by the Congress invoking the Commerce Clause.
However, it is also important to consider that unlike the previously mentioned Commerce Clause cases, under Obamacare people will be forced to buy the good in question (insurance from a private entity), not refrain from producing it. Legally speaking, it’s the difference between negative and positive rights. And make no mistake, that difference is huge and is one that will keep political pundits abuzz through the coming months.
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