Today the United States Supreme Court began three days of hearings on the constitutionality of the Patient Protection and Affordable Care Act (Obamacare). Challengers claim the law’s mandate that individuals purchase insurance or pay a fine is unprecedented. They are right. Despite government arguments to the contrary, requiring the purchase of a product or service is not the same as regulating how many acres of wheat a farmer can plant. A farmer can choose to plant no wheat without penalty. Those who choose not to purchase health insurance will pay a penalty.
The men who wrote and proposed the commerce clause — the constitutional provision that supporters of the mandate claim authorizes congressional enactment of Obamacare — could not have imagined the awesome government power that would emerge from these few words: “Congress shall have the power … to regulate Commerce with foreign Nations, and among the several States.”
But that does not mean the court will find the law unconstitutional. The history of the commerce clause is a long succession of Supreme Court decisions upholding unprecedented federal regulations. So it would be easy for a majority of the court to conclude that the individual mandate is constitutional. They would only need to observe that this law fits well within the history of expanding federal power to meet the ever-changing needs of a modern nation.
That is not to say that resolving this case should be an easy matter for the nine justices serving on the nation’s highest court.
To resist the well-worn path of expanding federal power, the justices must go back to basics. They must ask themselves what are the core, fundamental values of the U.S. Constitution. Was the framers’ purpose to create a national government of unlimited powers sufficient to address every conceivable challenge? Or was their purpose to create a national government with powers sufficient to address enumerated objectives, but limited so as to preserve the sovereignty of the states and, more importantly, the liberties of the citizenry?
There can be no doubt from the history of the constitutional framing that it was the latter. There were some at the constitutional convention in Philadelphia who aspired to effectively replace state governments with a national government of unlimited powers, but they were forced to compromise. There would have been no constitution without their compromise. Regrettably a century of Supreme Court commerce clause jurisprudence has compromised that agreement. The Obamacare case provides the court with an opportunity to begin the difficult process of restoring the American federal system to the vision of the framers.
There is, however, a seemingly powerful argument for not doing so. Decades of precedent have confirmed the purported constitutionality of the Leviathan that is Washington, D.C. Right or wrong, it is what we have, and stare decisis demands deference to the expectations that have long settled on the nation and its people.
But this argument mistakes the reason for respecting settled expectations. It is not to preserve the powers assumed by governments. It is to protect the liberties of those whom government serves. The framers understood that, unless restrained, governments will slowly erode the liberties of citizens. Those restraints included the horizontal and vertical separation of powers, the latter achieved by a careful enumeration of the limited powers of the national government. While reversing the precedent of expanding powers in Congress may upset the expectations of special interests that benefit from federal largess in its many forms, it will help restore the constitutional promise of liberty.
Ordinary people understand this promise, which is why a consistent majority still object to Obamacare and wish it to be found unconstitutional, notwithstanding its promised benefits. The argument for liberty will be made on Tuesday. Let’s hope every member of the court is listening and is prepared to face the challenge of preserving freedom under the Constitution, even if it runs counter to the expectations of those who exercise power.
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.