The Obamacare mandate is unconstitutional

David Kopel Associate Policy Analyst, Cato Institute
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Thursday’s decision in Thomas More Law Center v. Obama is a short-term victory for President Obama’s health control law. Yet a close reading of the case suggests that the law may have a very tough time once it gets before the Supreme Court.

The Obama administration’s strategy has been to try to delay the legal cases as long as possible. In order to bring a case in federal court, a plaintiff must have “standing” — a personal, concrete legal interest, as opposed to a generalized grievance. The Obama administration asserted that no individual could have standing to challenge the mandate until 2014.

The Obama rationale would delay Supreme Court consideration by at least four years, by which time President Obama might be able to pack the Supreme Court with justices who pass his litmus test of being willing to uphold the unprecedented federal law.

Like the federal district judges in Virginia and Florida, Judge Steeh in Michigan rejected the Obama argument on standing. Judge Steeh recognized that the individual plaintiffs must begin saving money today in order to pay for the $8,000 per family federal insurance policies they will be forced to start buying in 2014. The requirement to spend money starting at a certain date in the future can cause an immediate economic injury in the present.

So far, the Obama administration is 0 for 3 in its efforts to block courts from considering the constitutional merits of the health control law.

The Constitution grants Congress the power to “regulate Commerce…among the several States.” Congress is further given authority to enact laws which are “necessary and proper” to execute its enumerated powers.

So the Supreme Court has allowed Congress to prohibit a farmer from growing wheat for his own use and a sick woman from growing her own medical marijuana. The Court majorities have reasoned that the restrictions on intrastate activities are necessary and proper for Congress to be able to control the interstate markets in wheat or marijuana. (Wickard v. Filburn; Gonzales v. Raich).

At the same time, Congress cannot regulate non-economic activities, such as carrying a handgun, or sexual assault, just because those activities have some indirect effect on the economy. (U.S. v. Lopez; U.S. v. Morrison).

The choice not to buy a federally-designed insurance product is not an activity at all. It is inactivity. Judge Steeh, however, said that not buying insurance is an “economic decision.” Which is true, since all inactivity, including not purchasing products, is in a sense an economic decision. If you’re sleeping, you’ve made the “economic decision” not to spend your time working to make money.

So according to Judge Steeh, Congress can use the interstate commerce power to force you to make the “economic decision” to buy a bureaucratically-designed insurance policy that you don’t want.

However, the Supreme Court has never held that Congress can regulate any “economic decision.” Such a ruling would convert our Constitution of limited, enumerated powers into a grant of unlimited central power. The American people of 1787 never would have ratified unlimited central power, nor do Americans support such power today.

That Judge Steeh had to invent the “economic decision” theory demonstrates that a conscientious judge who wants to uphold the health control law can’t find a plausible way to do so within existing Supreme Court doctrine.

Judge Steeh’s opinion artfully elides the fact that he is creating new doctrine, but ultimately, the omission is not important. As Justice Breyer acknowledged to Congress, the constitutionality of the health control law will probably be decided by the Supreme Court.

The Supreme Court might choose to invent an “economic decisions” doctrine, and thereby stretch the Constitution beyond its breaking point. Or the Court might decide to keep the Constitution as it exists, with congressional powers over interstate commerce that are very broad, but not unlimited. The Thomas More case makes it clear that the Obamacare mandate to buy something you don’t want is constitutional only if the Supreme Court chooses to change the Constitution.

David B. Kopel is Adjunct Professor of Advanced Constitutional Law at Denver University, and Research Director of the Independence Institute, in Colorado. He recently joined the Washington Legal Foundation’s amicus brief in Virginia v. Sebelius, arguing that the health control law is unconstitutional.