The Nitty Gritty Details Of Obamacare, Part II
On April 18, 2012, 10:34 PM by Nima Desai
As the individual mandate’s constitutionality is determined, the justices must grapple with the massive elephant in the room: the size and power of the federal government.
My previous article regarding the legal issues concerning Obamacare, or the Patient Protection and Affordable Care Act (PPACA), left off with an important question: Is Obamacare worthy of a ruling that broadly interprets the Commerce Clause?
“The Court has been asked to limit the scope of Congress’s authority in a wide range of cases. Some of these have been for liberal causes, some for conservative.” -Professor Larry Lessig
The quick answer: a hesitant yes—so long as there is a clear frustration of a pressing federal objective. This decision would be in accordance with the case law on the Necessary and Proper Clause, which more or less tells us that before Congress can win the right to meddle with economic activity under the expansive Commerce Clause, it must prove that there is frustration of a compelling federal objective.
Here’s where the frustration comes in. Since the federal government already exercises its taxing and spending power to cover exorbitant emergency room costs, the cost alone is frustrating a government objective.
But don’t be fooled into thinking that this healthcare legislation came as the result of universal healthcare activism or pressure from the liberal elite. PPACA actually started in 1989 during the Reagan era at The Heritage Foundation, a conservative think tank. The foundation conceived the individual mandate as a means of making sure average taxpayers didn’t have to foot the sky high bills the uninsured would accrue–not big government’s encroachment upon an individual’s liberty.
Naturally, this legislation lends itself as succulent fodder for classical libertarians, who see the left and right as being in cahoots, or just partners in a communist, corrupt, godless, master plan against liberty.
Justices Roberts and Kennedy are our critical fence-sitters here. The main question for them is whether or not Obamacare concerns commercial activity that extends beyond state borders. But the justices must grapple with the massive elephant in the room: the size and power of the federal government, which we all know is the third rail of American politics right now. Roberts and Kennedy probably fear that an unfavorable ruling will be viewed as political pandering, and thus compromising the integrity of the Supreme Court. Even worse, they may even be accused of judicial activism (a common accusation against liberal justices), since the legislation enjoys such popularity.
Scalia is our wild card. Nothing short of a whiz when it comes to the Commerce Clause, some legal scholars believe that he may come out any which way. The elaborate maze of his legal mind could lead him to vote for Obamacare. Who knows? It’s Scalia.
The outcome of this important Supreme Court case will be difficult to predict, but consider this powerful remark made by esteemed Harvard Law School professor Larry Lessig: “If Obamacare fails, [The Supreme Court] will have struck down the most important social legislation advanced by the Democratic Party in a generation.” Now that’s a heavy statement.
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