On Friday, the 11th Circuit Court of Appeals upheld a lower court ruling that the so-called individual mandate provision of the Patient Protection and Affordable Care Act (Obamacare) is unconstitutional. At the end of June, the 6th Circuit upheld the same provision as a constitutional exercise of Congress’s power to regulate interstate commerce. The Supreme Court will have the last word. More than the future of Obamacare is at stake.
The individual mandate is a key provision of Obamacare. Without it, we will be left with an array of costly regulations including guarantees of insurance coverage for pre-existing conditions and for children under the age of 27. Missing will be the mandate’s guaranteed premiums needed to pay for it all.
But the merits of the law and the policy consequences of a finding for or against its constitutionality will not (or should not) be the concern of the Supreme Court when it finally takes up one or more of the cases still working their way through the lower courts. The issue will be the constitutional scope of congressional power. Is the federal government one of enumerated, and thereby limited, powers? Or is it a government with powers confined only by the will of the political majority?
The history of expanding federal power since the New Deal, always at the expense of the powers of state and local governments, is evident in the day-to-day lives of every American. There is even surprising public familiarity with the highlights of Supreme Court acquiescence in the ever-greater reach of the Commerce Clause — from restricting the amount of wheat grown for personal consumption (Wickard v. Filburn) to regulating marijuana grown for private use (Gonzales v. Raich).
Commerce Clause cases generally are framed as conflicts between federal power on the one hand and state and local power on the other. It is well-settled that when both federal and state governments have constitutional authority to act, the Supremacy Clause mandates that federal law preempts state and local law. But as the 10th Amendment provides, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The powers “delegated to the United States” are enumerated, for the most part, in Article I, Section 8, of the Constitution. The powers “reserved to the states” are those inherent in the police power. As the framers anticipated, and history demonstrates, Congress will continually press to expand the scope of its enumerated powers, often, as it turns out, in the name of regulating interstate commerce. Given this demonstrated tendency, if there are to be real limits on federal power it falls to the courts to decipher the constitutional boundary between federal and state powers.
From the New Deal to today, the courts have almost always deferred to Congress and thus undermined the concept of enumerated federal powers. As the 11th Circuit majority concluded in Friday’s decision: “The federal government’s assertion of power, under the Commerce Clause, to issue an economic mandate for Americans to purchase insurance from a private company for the entire duration of their lives is unprecedented, lacks cognizable limits, and imperils our federalist structure.”
Or, the court might have said, what remains of our federalist structure. Nearly a century of Commerce Clause jurisprudence has left a federal structure more in name than reality. States have become administrative units of the federal government more than the sovereign entities they were at the time of the framing of the Constitution. The challenge to Obamacare may be the last-ditch effort to save the 50 united states from finally disappearing into an all-powerful national state.
But there is more at stake than preserving some amount of sovereignty and independence in the states. As the final clause of the 10th Amendment should remind us, some powers are reserved to the people. The fact that a majority of Americans opposed enactment and have consistently favored repeal of Obamacare speaks not to their passion for the sovereignty of state governments. Rather it speaks to the basic American belief in individual freedom. Even when people understand that they themselves may be beneficiaries of all that Obamacare promises, a passion for liberty makes many recoil at the individual mandate.
So when the question of the constitutionality of the individual mandate finally reaches the Supreme Court, the justices will have two options. They can find a way to fit Obamacare’s mandate into a century of precedent allowing for yet more federal power while insisting there are limits. Or they can conclude, as the 11th Circuit does, that upholding the individual mandate will make it clear to all that there are no limits.
If the justices are paying attention, they will recognize that they are part of an escalating national debate over the role of government and the liberties of those whose consent has always been said to be necessary to the exercise of any government power. The Supreme Court will not settle that debate. It will continue long after the fate of Obamacare is recorded in the Supreme Court Reports.
But the members of the Court can contribute to the renewal of American federalism by recognizing that at bottom, the federal structure exists to protect liberty, not to protect either federal or state power. In making the case for protecting liberty through divided power, the Court can look to its own recent decision in Bond v. United States, and to the opinion of 6th Circuit Judge Sutton who, despite his upholding of Obamacare, recognized that “a critical guarantee of individual liberty is [the] vertical separation of powers between the National Government and the States.”
Jim Huffman is the dean emeritus of Lewis & Clark Law School, the co-founder of Northwest Free Press and a member of the Hoover Institution’s De Nault Task Force on Property Rights, Freedom and Prosperity.