Constitutional Issues for Obamacare

By Dr. Jeff Mirus ( bio - articles - email ) | Mar 27, 2012

As the Supreme Court begins hearing arguments on the constitutionality of Obamacare, it may be useful to identify the key issues in play. Essentially, these revolve around the Federal government’s authority (or lack thereof) to compel citizens to make purchases and the Federal government’s authority (or lack thereof) to force the several states to expand their Medicaid programs.

According to Philip Klein, a senior editorial writer for the Washington Examiner writing in the print edition on Sunday, the Justice Department will offer three defenses for the Obamacare mandate that private citizens must purchase health insurance. They argue: (a) Mandating this purchase falls under the regulation of interstate commerce in Article I, Section 8 of the Constitution; (b) Mandating this purchase is justified because the Constitution grants to the Federal government whatever is “necessary and proper” for Congress to exercise its enumerated powers; and (c) Failing both of these arguments, the forced purchase is justified because it is really just a tax, and Congress has the power to tax.

As to the argument based on the regulation of commerce, twenty-six states and the National Federation of Independent Businesses will contend that the insurance mandate represents an unprecedented expansion of Federal regulatory power because, as Klein succinctly puts it, “it isn’t regulating actual commerce, but its absence. It compels individuals to purchase a product, thus forcing them to enter the stream of commerce.” If it is possible to compel this, then there are essentially no limits on Federal power. Again, in Klein’s words, “Congress could also force individuals to join a gym or eat broccoli.”

As to the “necessary and proper” argument, those bringing suit against Obamacare will argue that this clause cannot be used as an “escape hatch” to justify a Federal action which cannot otherwise be justified under the Commerce Clause (or elsewhere in the Constitution).

The fallback position—the taxation argument—is somewhat embarrassing because the Obama administration has been vehement in claiming that the health insurance mandate is not a tax, and that the administration has kept its promise not to raise taxes on those earning less than $250,000 per year. Moreover, legally speaking, the fine for failing to purchase insurance is not found in any section of the health care law devoted to raising revenue, and any revenue it does raise is incidental to the clear intention, which is to enforce compliance with the mandate.

If this point seems obscure, consider that by upholding the mandate and its penalties as a tax, the Court would open the door to allowing Congress, as Klein expressed it, “to pass any regulation of human behavior and justify it as a tax by attaching a small penalty for noncompliance.”

The other major issue—compelling the states to expand their Medicaid programs—will be pressed by the Justice Department on the pragmatic claim of “in for a penny, in for a pound.” Essentially, the argument is that having agreed to be a part of the Medicaid program, the states must accept any condition that comes with it. For any who have worried that the federal (i.e., federated) character of the American governmental system has all but disappeared, this argument does not reassure.

Klein’s commentary is as clear an exposition of the Constitutional issues as I’ve yet seen in a brief presentation. Note that this is a completely separate question from the so-called HHS mandate for abortion, sterilization and contraception. It will be very interesting to see if the Supreme Court will decide the case based on Constitutional Law or—as has often been the case with more activist courts in recent history—based on the particular social outcome the justices happen to desire. If the Court strikes down any part of the legislation, it will have to also consider the question of “severability”. In other words, can the law stand with any unconstitutional provisions removed, or are the unconstitutional aspects so integral to the legislation that it must be struck down in toto?

I do not profess expertise in Constitutional Law, but all citizens—and especially those who object to certain moral provisions of Obamacare—have a vested interest in understanding the basic issues, and in following the broad outlines of the case.