The Patient Protection and Affordable Care Act, or “Obamacare,” has undergone oral arguments before the Supreme Court, and its constitutionality is now being pondered by the nine justices. The court’s decision is due out sometime in June.
While the 2010 health-care law is atrocious public policy and clearly an unconstitutional power grab by the federal government, there is no guarantee the court will overturn it.
The Supreme Court has historically shown deference to the legislative branch in such matters. In fact, for almost 60 years (1937–1995) the court did not rule a single congressional act to be unconstitutional, and that was during an era of rapid federal expansion (the New Deal, World War II, the Cold War, and the Great Society).
However, there are times when the court is confronted with a case so egregious that it must act in order to preserve its own legitimacy. A good example of this was United States v. Lopez, in 1995, when the Court ruled five to four that the federal Gun Free School Zone Act was beyond Congress’s lawmaking powers under the Commerce Clause and was therefore unconstitutional.
The main constitutional issue with Obamacare is its provision mandating that everyone either purchase a health-insurance program or pay a fine for not doing so. Congress asserts this power under the Commerce Clause (Article I, Section 8, Clause 3 of the Constitution), which says it shall have the power “To regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes.”
The Commerce Clause’s original purpose was simply to give Congress the power to regulate foreign trade and to prevent the states from imposing internal tariffs. The Supreme Court has used (or abused) it to uphold the federal prohibition of activities in Wickard v. Filburn and Raich v. Ashcroft as well as various federal regulatory actions. But many constitutional scholars argue that the insurance mandate stretches the Commerce Clause too far.
The insurance mandate clearly exceeds the federal government’s powers even under the court’s elastic interpretation of the Commerce Clause. The power to “regulate” commerce cannot include the power to compel commerce. Those who claim otherwise are basically saying there are no limits on federal power.
So while the Supreme Court’s jurisprudence has been deferential toward Congress and the executive, Obamacare is such an outrageous power grab that there is a very good chance it will be declared unconstitutional. If the court rules otherwise, it will be revealing itself to be nothing more than a political rubber stamp for the federal government’s claim of unlimited power. Note here that the overriding concern of the court may not be the rule of law per se but rather its public image as an independent institution.
That said, I’d like to focus on another element of this controversy. From our republic’s earliest days, federal power has been expanding at the expense of the states and individual liberty. This trend has been reinforced by the federal courts adopting a jurisprudence that has gutted the Framers’ original conception of a very limited central government.
Most people are not aware that the United States of America is composed of separate and sovereign republics, each with its own constitution. And the government-controlled media and education system has portrayed the erosion of states’ rights as progress. After all, the removal of constitutional restraints has allowed the feds to do all sorts of nice things to us, such as conscripting our young men to fight in their foreign wars, and taxing our wages to pay for their transfer schemes and boondoggles. And now they are looking to force us to buy health-insurance plans we may not want or need.
Why has the federal judiciary historically taken such a broad interpretation of federal power? Could it be because the federal courts are part of the federal government? Yes, the federal courts will usually give all arguments a respectful and solemn hearing, but at the end of the day we must ask ourselves, is the fix in?
It seems to me that in matters regarding constitutional litigation, there is an inherent conflict of interest when the final decision is entrusted to the Supreme Court, which is, after all, a federal court. We now have a political system where federal officials are the final arbiters of the limits of their own powers. So we shouldn’t be surprised that the feds so often come to the conclusion that there are no limits on their powers.
While I’ll support the challenge of the 26 states contesting the constitutionality of Obamacare and hope the law is overturned, I don’t think pleading before the federal courts to restore the Constitution is an effective long-term strategy for promoting liberty.
The core political problem in this country today is centralized power. This is the source of all the mismanagement, waste, and corruption that is now so pervasive at the federal level. Asking the feds to do the “right thing” and restore the Constitution, thereby renouncing all the powers they have seized over the last century, is simply not realistic.
So if constitutional litigation is not the answer, what options do liberty-minded Americans have in the face of unbridled federal ambition?
Well, the first thing to remember is that the so-called system of checks and balances is a farce; the reality is that all three branches of the federal government have expanded and will continue to expand the powers of the central government, irrespective of the Constitution. Yes, the federal courts have from time to time curbed federal power and defended individual liberty, but these rulings have been few and far between. They represent minor detours in the country’s long march toward federal tyranny.
The abuse of the Commerce Clause is a good illustration of how the feds misconstrue the Constitution’s text to justify something it was designed to prevent: an unlimited central government. If the representatives of the sovereign states had been presented with the idea at the Philadelphia Convention in 1787 that the federal government could claim general powers via the proposed constitution’s various clauses (Commerce, General Welfare, Necessary and Proper, etc.), they would have rejected it forthwith.
After all, what is the point of laboriously designing a system of specific and enumerated powers if the feds can simply invoke “interstate commerce” or “general welfare” to do whatever they want? Indeed, the subsequent history of our country seems to have vindicated the suspicions of the Virginia patriot and Anti-Federalist Patrick Henry, who upon refusing his invitation to the Constitutional Convention exclaimed, “I smell a rat!”
Perhaps a better way to challenge federal tyranny is to call on the states to reassert their sovereignty by passing legislation nullifying unconstitutional federal laws. This was the approach proposed by Thomas Jefferson and James Madison in 1798 when they were confronted with the reprehensible and unconstitutional Alien and Sedition Acts. As historian Thomas Woods Jr. writes,
If the federal government has the exclusive right to judge the extent of its own powers, warned James Madison and Thomas Jefferson in 1798, it will continue to grow — regardless of elections, the separation of powers, and other much-touted limits on government power.
Now, those who dismiss nullification as impractical, retrograde, or even “kooky” should consider that this approach has worked recently to effectively nullify the tyrannical Real ID Act.
According to the Tenth Amendment Center,
Led by Maine in 2007, 25 states have passed resolutions and binding laws denouncing and refusing to implement the Bush-era law. … While the law is still on the books in D.C., its implementation has been “delayed” numerous times in response to this massive state resistance, and in practice, is virtually null and void.
Had challenges to the Real ID Act been restricted to litigation in the federal court system, the law would probably be enforced today, with the courts citing deference to Congress’s powers to regulate interstate commerce and “national security.” Sometimes just saying “no way” to the feds works.
This is a guide for liberty-minded people who want to challenge Obamacare and who, for good reason, don’t trust the federal judiciary to limit federal power. Why oppose the feds by yourself when you can use your state government, which, for all its imperfections, is far more approachable than and nowhere near as dangerous as the Leviathan in D.C.?
Tim Kelly is graduate of George Mason University. He is a political cartoonist, a policy advisor and columnist for the Future of Freedom Foundation and a producer/correspondent for Radio America’s Special Investigator. Tim is married and has been blessed with five children. This article was first published by the Future of Freedom Foundation.