This past week laid the foundation for one of the most important U.S. Supreme Court decisions in the past 70 years. To say it was an exciting week for Supreme Court watchers would be a gross understatement. The future of freedom in America truly hangs in the balance.
If a majority of the nine justices upholds the individual mandate, which is the linchpin of Obamacare, we will know definitively as a country that there are no limits whatsoever on the federal government’s power to regulate individual behavior under the Commerce Clause. If the court throws out the individual mandate, we will know there is at least some limit to this power.
The Supreme Court heard six hours of oral arguments on four separate issues over the course of three days this week. The issue on Monday was whether the court has jurisdiction over Obamacare under the Anti-Injunction Act, which bars legal challenges to a tax until it has taken effect. The individual mandate doesn’t take effect until 2014, but the Obama administration and opponents of Obamacare argued that the Anti-Injunction Act does not apply to Obamacare because the mandate is not a “tax.” The justices seemed to agree, leaving little doubt that they want to deal with Obamacare sooner rather than later.
On Tuesday, the court jumped head first into the real heart of the matter, hearing arguments on the individual mandate, the most controversial aspect of Obamacare. The mandate requires all Americans to purchase government-defined health insurance coverage (or pay for it anyway). The administration argued that the Commerce Clause gives Congress the power to mandate that people purchase health insurance. Though the Supreme Court has upheld federal mandates in the past, this particular mandate clearly goes far beyond those precedents.
The essence of the administration’s argument, which was made by Solicitor General Donald Verrilli, is that, because health care is a “unique market,” ensuring that everyone has health insurance requires government coercion. Many court pundits had worried Justice Antonin Scalia’s vote might be up for grabs due to his expansive interpretation of the Commerce Clause in previous cases (including the California medicinal marijuana decision in which he joined in 2005). Those fears, however, appear to have faded following this week’s arguments, in which it was clear the acerbic Scalia had little appetite for expanding congressional power even further.
With the conservative wing of the court tipping its hand early on, all eyes turned to Justice Anthony Kennedy, who is often seen as the Supreme Court’s “swing vote.”
Kennedy made it clear to Solicitor General Verrilli that he was skeptical of expanding the reach of the Commerce Clause. As the jurist explained, “Here the government is saying that the federal government has a duty to tell the individual citizen that it must [engage in commerce], and that is different from what we have [ruled] in previous cases, and that changes the relationship of the federal government to the individual in a very fundamental way.”
Of course, Kennedy could not be more right. However, by the end of the argument, Kennedy seemed to acknowledge the Obama administration’s argument that the health insurance market is unique, making his final vote in the case still unclear.
Finally, on Wednesday the court took up the final two arguments against the law — whether the rest of the law can be severed from the individual mandate if the individual mandate is struck down, and whether the law’s Medicaid expansion is unconstitutional.
Congress failed to include a “severability clause” when it passed the bill in 2010, and the president and his supporters in Congress have repeatedly argued that the individual mandate is the essential foundation for the entire law, so if the court determines that the individual mandate is unconstitutional, there’s a very real chance that it will strike down the entire law. There were five members of the court who seemed to not have the stomach to dive into the thousands of pages of the law in order to decide, provision-by-provision, which parts could stand on their own if the individual mandate were thrown out. Justice Kennedy, who very well may cast the determining vote, said that it would be “a more extreme exercise of judicial power” to strike down the parts of the law relevant to the mandate than to strike down the entire law.
The state plaintiffs, including Florida and Georgia, were much less successful in their arguments against the Medicaid expansion part of Obamacare. Some members were sympathetic to their arguments about coercion, but even Chief Justice John Roberts noted that states may already have forfeited their sovereignty in exchange for money from the federal government.
All in all, attorneys presenting the case against Obamacare, notably former Solicitor General Paul Clement and Michael Carvin, did an excellent job presenting the principles of limited government and dismantling the Obama administration’s view of a limitless government. The government counsel had a much more difficult road to hoe, and it showed. A majority of the current high court appears to share the opponents’ skepticism, but history — and other recent Supreme Court decisions upholding expansive federal mandates —- dictates a high degree of caution. We should not pop the champagne corks quite yet.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He provides regular commentary to Daily Caller readers.