As an attorney who has argued a number of appellate cases, I can testify that judges' questions during oral arguments are not necessarily a good predictor of the outcome of a case. Judges often use oral argument as a sounding board for competing jurisprudential theories and as a vehicle for playing devil's advocate. The questions asked don't necessarily telegraph how the judges are feeling about the case, or the way they will ultimately rule. Still, the questions posed by the Supreme Court during last week's argument on the Affordable Care Act, a.k.a "Obamacare," indicate that the court is pondering not just the future of health care in this country, but also the role of the federal government in the lives of its citizens.
The heart of Obamacare is the so-called individual mandate, which requires that citizens purchase health insurance or pay a penalty. The goal of the legislation is to induce full participation in the program in order to ensure its fiscal solvency (premiums from young, healthy individuals are necessary to offset the costly medical bills of the sick and elderly) and eliminate "free riders," (those uninsured individuals whose health care costs are borne by those who do have health insurance). This approach, we are told, will result in low-cost, high-quality healthcare for all.
Makes sense, right? Who could possibly object to a program that promises to right the many perceived wrongs of healthcare in America? Who would argue against securing affordable, accessible health care for the millions upon millions (or so we're told) of "involuntarily" uninsured Americans? At first blush the mandate seems like a commonsense, compassionate approach, until you consider the broader legal implications of the government's actions.
Under Obamacare the federal government is essentially dictating that people buy a product (health insurance) with the justification that "this product is not only good for you, it's good for everyone else." That's a pretty big step for a limited government of enumerated powers, which is what the federal government is supposed to be. Where Congress or the President derives the authority to determine the personal economic choices of the American people is unclear. One certainly doesn't find it in the text of the Constitution, and this is the rub. If the court upholds Obamacare, a precedent will be set by which the federal government will be emboldened and empowered to make laws based on what it decides is in the "best interests" of the American people – eat your veggies, take your vitamins, get your exercise, don't smoke, don't drink, drive a hybrid, buy only government-approved energy efficient light bulbs... The list goes on and on. That's why Justice Kennedy rightly noted that if Obamacare is upheld, the Court will be sanctioning a fundamental change in the way the federal government relates to the people.
Of course, advocates of Big Government and disciples of the Nanny State are hoping that's just exactly what the Court will do. They want an all powerful, benevolent Big Brother to tell the unwashed masses what's good for us and how we should live our lives, and they want this authority backed by the force of law.
All who love liberty – which includes the freedom to make what some might perceive as "poor" choices – should be concerned about the outcome of this case. It's about so much more than healthcare; it's about the role and size of government and the basic right for American citizens to decide how to live their own lives. It's also about checks and balances and the meaning of the Constitution.
The Court is expected to rule in June. How will the justices ultimately decide? At this point no one knows for sure; however one thing is certain: This ruling will affect how future generations of Americans perceive what it means to be a "free" citizen in the good 'old U.S. of A.