Like Eastwood Talking to a Chair: The Good, the Bad, and the Ugly of the Obamacare Ruling

Article excerpt

I. INTRODUCTION

The legal challenge to the Patient Protection and Affordable Care Act, more commonly known as "Obamacare," was a case that comes along once every generation, if not less often.1 Not because it could affect a presidential election or was otherwise politically significant-those cases come around more frequently-but because it reconsidered so many aspects of our constitutional first principles: the fundamental relationships between citizens and the government and between the states and the federal government; the role of the judiciary in saying what the law is and checking the political branches; and the scope of and limits to all three branches' powers. As I've repeated ad nauseum in more than a hundred speeches, debates, and panels on the subject, this case was not about the state of health care in America or how to fix this troubled area of public policy.2 It was instead about how to read our nation's basic law and whether Congress was constitutionally authorized to use the tools it used in this particular instance.

Anyone reading this article will already know at least the basic outline of the Supreme Court's ruling. As I wrote on the leading Supreme Court blog in the wake of the decision, we-those who helped challenge the law-won everything but the case.3 That is, the Supreme Court adopted all of the legal theories that I suggested in my briefing regarding the scope of federal regulatory authority.4

II. NO ECONOMIC MANDATES

On the Commerce Clause, which grants to Congress the power to regulate interstate commerce, the Court said that Congress cannot compel activity or create commerce in order to regulate it.5 The Court distinguished Obamacare's requirement to buy health insurance from previous cases where there was already some sort of existing economic activity that the federal government then either regulated or prohibited.6 In the foundational 1942 case of Wickard v. Filburn, for example, the Court upheld a federal law that prohibited farmers from exceeding crop quotas and required them to sell crops-in Roscoe Filburn's case, wheat-at set prices.7 Similarly, if you run a car company, the federal government can require you to install seat belts and meet fuel efficiency and emissions standards. In short, as the National Federation of Independent Business v. Sebelius (NFIB) plaintiffs accepted, the federal government under modern doctrine can regulate even (certain types of) purely local economic activity when in the aggregate that local activity has substantial effects on interstate commerce.8

Or similarly, the federal government can look at that economic activity and say, "stop": It can prohibit it, it can criminalize it, and it can punish it. So, for example, sixty years after the wheat case, we had the weed case, Gonzales v. Raich.9 There, Angel Raich and Diane Monson wanted a judicial ruling that their growth and consumption of marijuana for certain medicinal purposes as allowed under California state law would not subject them to federal prosecution under the Controlled Substances Act. They made clear that they were neither buying nor selling the marijuana nor were they transporting it across state lines. The Supreme Court ultimately ruled for the federal government; the theory was that these women were engaging in local economic activity-growth and consumption-that had an aggregate effect on illegal interstate commerce. 10 Justice Scalia famously concurred in that ruling, arguably espousing an even broader view of federal power, stating that the government can reach even noneconomic activity that, if leftalone, can undermine a duly authorized national regulatory scheme.11

Here, in contrast, the Court agreed with the challengers that what Congress was doing, for the first time ever, was requiring people to do something, to engage in an activity or conduct a transaction that they were not otherwise pursuing.12 Even though that mandate was part of a broader national regulatory scheme, it was a bridge too far:

The language of the Constitution reflects the natural understanding that the power to regulate assumes there is already something to be regulated. …