After three days of argument before the Supreme Court, speculation about the future of Obamacare is growing.
Removed from cameras and news reporters last Friday, justices gathered for a post-argument conference; and during the private meeting, each voted on the questions presented, including the issue of whether the individual mandate to purchase insurance is Constitutional.
Based on their votes, a justice or perhaps several justices will be assigned to draft opinions. There will be more than one, as there are different issues before the Court — severability, Medicaid expansion, Anti-Injunction Act and the individual mandate. Indeed, it is likely that four proposed opinions will be circulated within the chamber, and if any one garners five or more votes, then it would become the majority opinion of the court.
There are presently more than thirty other cases pending. As the term progresses, the court will announce its decisions. With the last scheduled day of the 2011-2012 term on June 25, we should know the outcome of Obamacare by this summer.
Until then, we are left to contemplate.
Oral argument did not go well for President Obama’s signature legislation, with many predicting the individual mandate — and the entire act by extension — will be declared improper. However, it is difficult to reliably predict outcomes based solely upon argument.
Given the above, my prediction is that the court will proclaim the mandate unconstitutional by a vote of 5-4.
Although Congress purports to justify the mandate under its power to regulate commerce, its approach does not comport with either the text or purpose of the Constitution’s Commerce Clause, as the mandate does not purport to regulate activity. Instead, it illogically attempts to regulate individual inaction.
To accept the government’s position, the court would have to conclude that Congress is allowed to create commerce in order to then regulate it. But regulating or even proscribing activity is much different from requiring persons to affirmatively engage in it, particularly when they are not offering commercial services and object to entering into a contract with an unrelated entity.
It is one thing to contend Congress has the power to regulate certain activities of the automotive industry, for instance; it is quite another for it to require every American to purchase a GMC automobile.
As noted by Justice Alito during argument, using the government’s expansive interpretation of the Commerce Clause, Congress could require everyone to obtain burial insurance on the ground that everyone dies, since failure to obtain burial insurance shifts the cost of burial to the public. Sharing Justice Alito’s concerns, Chief Justice Roberts questioned whether Congress could require everyone to purchase a mobile phone to dial 911, on the ground that everyone is susceptible to needing emergency services at some time or another.
Even in wartime, when the production of material is crucial to survival, Congress has never claimed such power.
During World War II, no farmer was forced to grow food for troops; no worker was forced to build airplanes. Though the government encouraged the public to buy bonds to finance the war effort, it never mandated their purchase. While Congress did implement a draft, it did so as necessary and proper to its enumerated authority “to raise and support armies” and not under its commerce or taxing powers.
What Congress cannot do during a wartime emergency, it cannot do in peacetime simply to avoid the political costs of raising taxes to pay for new programs.
The individual mandate will be found unconstitutional because its enforcement – no matter how well-intentioned – would abolish any limit on federal power and alter the fundamental relationship of the national government to the states and the people. It would be difficult to articulate any limiting principle, if it is found to be a valid exercise of power.
The people have only granted our national government specific powers that are enumerated in and confined by the Constitution. Because Congress has exceeded those powers, immediate enforcement of the Constitution’s limits is required.
** State Senator Chris McDaniel
Magnolia Tribune
