Deferring to the Constitution

Posted: Feb 10, 2011 11:58 AM
Why does the Constitution place restrictions on Congress?

One reason is to give the states room to experiment with social and economic policy—as they have been doing in healthcare—and avoid one-size-fits-all solutions. Another is that limiting the power of the federal government helps protect individual liberty. As Thomas Jefferson recognized, when government gains ground, liberty yields.

So far, two federal judges have found that the Patient Protection and Affordable Care Act, commonly referred to as “Obamacare,” is a valid exercise of Congress’s constitutional powers, and two have found that it is not.

That disagreement is more about the Supreme Court’s interpretation of the Constitution than the Constitution itself. As most people understand—correctly—the Constitution created a federal government of enumerated and thus limited powers, not the sprawling behemoth contemplated by those supporting the constitutionality of Obamacare.

An engaged judge guided by the plain meaning of the Constitution would have no choice but to declare Obamacare unconstitutional. Only by stretching the Supreme Court’s already taffy-like interpretation of the Constitution even further can one pretend that Congress has the authority to regulate non-economic non-activities, like not purchasing health insurance.

The legal issue in the Obamacare challenges is not whether forcing individuals to purchase health insurance is a good idea, but simply whether the inactivity of not purchasing health insurance constitutes interstate commerce subject to regulation by the federal government.

The reason some judges have upheld the law is because there is increasing tension between the plain meaning of the Constitution and the Supreme Court’s interpretation of it. The Constitution provides Congress with a discrete set of enumerated powers, among which is the power to regulate commerce among the states. If Congress legislates outside of its enumerated powers, the courts have a duty to strike the legislation down.

For years, however, the Supreme Court has issued Congress what amounts to a blank check by adopting increasingly creative definitions of the words “interstate” and “commerce.” But then in a 1995 case the Court seemed to say enough is enough. It struck down a law forbidding the carrying of guns near schools. The government argued that guns near schools could affect interstate commerce by scaring kids and disrupting their studies, thus making them less productive economic actors.

But the Supreme Court rejected that argument as too sweeping—under the government’s reasoning, there would be nothing that Congress could not regulate as “interstate commerce.” The Court reiterated that point five years later in another case involving non-economic criminal conduct. Amazingly, four dissenting justices in each case embraced the federal government’s sweeping arguments. But the Court seemed to backtrack in 2005, ruling that Congress could ban the mere possession of home-grown medical marijuana, even if it is never sold and was legal to use and possess under state law. Faced with this uncertainty in the case law, judges should return to first principles.

Judges considering Obamacare challenges have clear directions from the Constitution but confused precedents from the Supreme Court. A properly engaged judge would recognize that when precedent is murky, but the Constitution is clear, the judge must side with the Constitution. To side with the government simply because it is the government—as far too many judges do today—is abdication, not judgment.

Government will always push to expand its powers beyond what the Constitution authorizes. The framers understood this and believed the judiciary would be, in James Madison’s words, “an impenetrable bulwark against every assumption of power in the Legislative or Executive.” Whether the Supreme Court will fulfill that duty when it considers Obamacare—where the unconstitutionality of the law at issue could scarcely be clearer—will be the difference between judicial engagement and judicial abdication.