Why Obamacare is "the Most Important Case" in 50 Years: Q&A with Timothy Sandefur of PLF

Does the fate of a federal government with limited powers rest in the hands of Supreme Court Justice Antonin Scalia? And if so, will he rule against broad federal powers (as he did in the Gonzales case) or in favor of the feds' right to regulate just about anything (as he did in the Raich case)?

The Supreme Court case over The Affordable Care Act, a.k.a. Obamacare, "is certainly the most important case on the reach of federal power in 50 years" says attorney and legal scholar Timothy Sandefur of the Pacific Legal Foundation. "The constitutional principle of where is the line drawn on federal power - that's a matter that our children and grandchildren will have to live with."

The ruling will come sometime in early June, predicts Sandefur, who tells Reason.tv that the Affordable Care Act raises mutliple constitutional issues: Can part of the law be struck down and other upheld? Is the "individual mandate," which forces all Americans to purchase insurance as a condition of simply being alive, legal? Does the law's massive expansion of Medicaid shred the right of states to govern their own finances?

"If the Court says yes, the federal government can compel you to buy health insurance," Sandefur tells Reason's Nick Gillespie, "then it would be a matter of politics whether Congress chooses to force you to buy a Chevy Volt or buy whatever else they think is good for society or the economy or whatever else a politician thinks is a good idea." What's more, Obamacare's Medicaid provisions, which call for an ever-increasing number of citizens to be covered by the nation's health care program for the poor, deny states the right to opt out and still receive federal money. "The federal government has never done something like this before," explains Sandefur, "where it expanded eligibility requirements so dramatically."

Sandefur, who is attending the Supreme Court's oral arguments, maintains the blog Freespace and is the author of The Right to Earn a Living: Economic Freedom and the Law. He is a principal attorney at the Pacific Legal Foundation, a public-interest law firm headquartered in Sacramento, California that works for economic freedom and individual rights. PLF filed several amicus briefs against The Affordable Care Act and represented the plaintiffs in Sackett v. EPA, the just-decided Supreme Court case which ruled that compliance orders by the federal Environmental Protection Agency can be challenged in court by affected landowners. The case is being hailed as a major victory for property rights. Watch a Reason.tv video about Sackett v. EPA here.

Approximately 7 minutes.

Shot by Jim Epstein and Meredith Bragg, and edited by Epstein.

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  • Joe M||

    I wish it had been named the Creating Affordable Care Act.

  • ||

    I wish it had been named the Creating Affordable Care Act.

    But if they did that, then people would call it . . . .

    Okay, I see what you did there!

  • I have a JD||

    Timothy Sandefur is one smart mofo.

  • Socialistic Individual Sparky||

    But what does he think of the LFP?

  • Anna Graham||

    Karma Cyst
    Tacky Mars
    My Sack Rat
    Tar My Sack

    http://wordsmith.org/anagram/a.....t=1000&a=n

  • H man||

    Be careful, You repeat the name three times into an internet and you'll be haunted for life.

  • MNG||

    I still don't get why, even to libertarians, Raich is not a bigger deal than this case could be....I get why libertarians would oppose federal mandates of interstate commerce, that's a no-brainer, but isn't it worse to say that the feds can enact total prohibitions of INTRASTATE conduct?

  • Charlotte Corday||

    Depends. But wouldn't the ability to force people to do things, even things like buy guns or contraceptives that are against their conscience be pretty bad?

  • fish||

    Raich is a big deal! Have we decided to revisit it?

  • Juice||

    Well, when I read the headline I thought, "more important than Raich"? But then I thought about the implications of upholding the mandate. If upheld, this "newly discovered" power of Congress would be much more far reaching than even those upheld in Raich.

  • CrackertyAssCracker||

    I find the bigdealness of the two about equal. And buying insurance from an in-state provider and going to an in-state doctor seems just as intrastate as growing your own in-state wheat or pot to me, so that aspect doesn't really seem to favor one case over the other to me.

  • Old Mexican||

    Re: MNG,

    I still don't get why, even to libertarians, Raich is not a bigger deal than this case could be[...]


    The government is not making us buy or produce marijuana, MNG. Raich only affects some producers even considering the decision by the SCOTUS was ill-conceived. Instead, the mandate makes you buy something, regarding very few exceptions. THAT'S the difference.

  • Fist of Etiquette||

    This is only the most important case until next year's Florida v. Jorge Zimmerman.

  • Joe M||

    Wrong. You're forgetting the case immediately preceding that: Jorge v. George.

  • ||

    A George divided against itself cannot stand alone.

  • Baby Huey||

    George is my friend

  • Liberace||

    Well I wish my brother George was here!

  • moop||

    it will be George because it looks more white, sharpton and the other race-baiters want you to know he's a white hispanic, not a hispanic

  • Paul||

    The Supreme Court case over The Affordable Care Act, a.k.a. Obamacare, "is certainly the most important case on the reach of federal power in 50 years

    Heller was extremely important, too. It verified that we have the right to keep and bear the tools which keep tyranny in check.

  • Obama||

    Sure you do. Heh heh heh.

  • Obama||

    Drone headed your way.

  • ||

    lol

  • thirtyandseven||

    tacocopter?

  • PHAT INDIAN||

    Banned...by the FAA! No airdropped tacos for you..ever!!

  • Eric Holder||

    I got yer due process... hangin'...

  • o3||

    "If the Court says yes, the federal government can compel you to buy health insurance," Sandefur tells Reason's Nick Gillespie, "then it would be a matter of politics whether Congress chooses to force you to buy a Chevy Volt or buy whatever else they think is good for society or the economy or whatever else a politician thinks is a good idea."
    _

    except that one has no choice but to participate in healthcare.

    the only practical issue is who pays for the uninsured; the (previously)uninsured themselves, or everyone else but the uninsured thru increased premiums.

    >remind me what the heritage foundation, & the gop's solution was?...oh yea, the individual mandate which reinforces personal responsibility.

    good idea!

  • Charlotte Corday||

    except that one has no choice but to participate in healthcare.

    Those who choose not to get health care and cure themselves via new agism or prayer would disagree.

    And no one can choose not to participate in the food market either. So by your logic, you are at all times participating in every agricultural market in the world.

  • o3||

    one can grow, hunt, & fish for food.

    the religious angle is interesting however.

  • Charlotte Corday||

    one can grow, hunt, & fish for food

    But according to Wickard, that is participating in the market.

  • o3||

    the grocery store is market-based insurance against starving since one pays a premium for the delivery & storage unlike growing, hunting, & fishing.

  • Charlotte Corday||

    Doesn't matter. In Wickard, the guy was growing his own wheat for personal consumption. The government told him to stop. The Court said the government could do that because by growing his own wheat, he was participating in the market.

  • o3||

    so, per charlotte, the wickard logic is; going to the grocery store is participating in the market...and NOT going is also participating?
    >im not convinced uve presented that argument properly.

  • Charlotte Corday||

    That is the logic. Wickard grew his own wheat for personal consumption. The federal government said, growing the wheat reduced the aggregate demand for wheat and thus was part of interstate commerce.

  • o3||

    A farmer, Roscoe Filburn, was growing wheat for on-farm consumption. The U.S. government had established limits on wheat production based on acreage owned by a farmer, in order to drive up wheat prices during the Great Depression, and Filburn was growing more than the limits permitted. Filburn was ordered to destroy his crops and pay a fine, even though he was producing the excess wheat for his own use and had no intention of selling it.
    http://en.wikipedia.org/wiki/Wickard_v._Filburn
    _
    you left out the ag dept quota was exceeded (established by farmer plebiscite) despite being advised before planting.

    ergo,i believe this to be a false analogy.

  • CrackertyAssCracker||

    So you admit you were wrong when you said: "one can grow, hunt, & fish for food" ?

  • fish||

    ag dept quota was exceeded

    Why would an agricultural quota even apply unless the wheat was destined for eventual sale?

  • Trespassers W||

    you left out the ag dept quota was exceeded (established by farmer plebiscite) despite being advised before planting.

    http://en.wikipedia.org/wiki/Begging_the_question

  • Brian||

    Ding ding!

  • ||

    it's an uncreative mind that cannot distinguish between health care and health insurance.

  • Ex nihilo||

    That is what I keep saying. Care != Insurance.

  • Paul||

    It's been said here in many different ways. When the liberals keep screaming, "it's about access!", they're tacitly admitting that Access != Care.

  • ||

    except that one has no choice but to participate in healthcare.

    And "healthcare" would certainly include eating right and exercise?

    Contraception is "health care" but forced exercise isn't? Since almost every person will use a band-aide or take an aspirin they will use "health care"? Our society is too stupid to live.

  • Ex nihilo||

    Of course it is. If I am paying for your healthcare, I have a right to ensure you minimize my cost.

  • o3||

    Contraception is "health care" but forced exercise isn't?
    _
    because it reduces costs, duh

  • WTF||

    Our society is too stupid to live.

    o3|3.27.12 @ 1:16PM|#

    Exhibit 'A'^^^^^

  • ||

    I don't have the choice that, upon finding I am gravely ill and in serious need of medical attention, slathering myself with honey and going into the woods to let the bears eat me?

  • Ex nihilo||

    I don't have the choice that, upon finding I am gravely ill and in serious need of medical attention, slathering myself with honey and going into the woods to let the bears eat me?

    Unfortunately no, because you would be found by a hiker, taken to the ER, and patched up. We have to pay for that, therefore; no honey covered walks in the woods for you.

  • ||

    what about splenda-covered walks?

  • Ex nihilo||

    Does splenda cause a spike in blood sugars? Last thing we need is a SugarFree bear.

  • ||

    I'll tell you this in all seriousness....I was getting regular mild migranes for several years, got a prescription for some pretty expensive migrane medication and didn't like the way they made me feel. My brother's girlfriend tells me to cut out all artificial sweeteners. I do so and presto...no migranes. Gone. Completely.

    Really did not think it was going to be that easy.

  • Ex nihilo||

    Glad to hear it. Diet can be a very powerful fix to health issues.

  • Kwanzaa Cake||

    Ban the artificial sweetners! Ban them!

  • PHAT INDIAN||

    Don't do it Anthony!

    You're too fatty!

    Mayor Bloomberg told me to take you off the "Approved for Bears" list!

  • Brian||

    I don't have the choice that, upon finding I am gravely ill and in serious need of medical attention, slathering myself with honey and going into the woods to let the bears eat me?

    Let's say you have a lot of money, and would just like to buy any healthcare you need in the future.

    How does it help you to be forced to buy insurance?

  • Teve Torbes||

    Or, to take the hypothetical a step further: You are part of a very large family in which every family member is an MD of some sort. Then, not only do you not need to participate in the health insurance market, you don't need to participate in the health care market either since you get care for free. The supporters of the mandate are trying to blur the distinction between insurance and care and arguing that everyone is in the health care market, but this thought experiment shows that is not necessarily the case.

    Anyway, whatever one thinks of the merits of universal coverage, the individual mandate can't be allowed to stand.

  • Brian||

    o3

    except that one has no choice but to participate in healthcare.

    the only practical issue is who pays for the uninsured; the (previously)uninsured themselves, or everyone else but the uninsured thru increased premiums.

    Lots of people participate in markets without insurance products, and frequently at no choice (I'm considering markets in oxygen, water, food, clothing, and shelter). The burden of who should pay is usually, fairly simple in those cases. Why is it that, in th healthcare market, we act as though we throw out all the normal rules, and people without insurance must inherently be burdens on other people? It makes absolutely no sense, yet I hear people squawking this all the time.

  • Old Mexican||

    Re: O3,

    except that one has no choice but to participate in healthcare.


    except that one has no choice but to participate in eating.

    except that one has no choice but to participate in drinking water.

    except that one has no choice but to participate in occupying a space on Earth.

    Should the government mandate you participate in eating? Should the government punish you for not drinking water? Should the government mandate you buy a house?

    Idiot.

  • Sevo||

    "except that one has no choice but to participate in healthcare."

    Define your terms.

  • Jules||

    English, motherfucker, do you speak it?!!

  • Rev. Blue Moon||

    How about the most important case ever? I say yes.

  • ||

    what's the Gonzales case that Scalia ruled against the expanion of federal power?

  • Rev. Blue Moon ||

    Probably should be Lopez. Gonzales was on the other side of the "v" with Raich.

  • ||

    ObamaCare is shaping up as the case where SCOTUS has run out of room to pretend that we have a national government of limited, enumerated powers.

    Either they have to say, eh, not any more, or they have to say that there are principled limits (which they have not, really, done since Wickard) on government control over our economic lives.

    Its important, not so much because of the doctrinal ins and outs, but because a sizable portion of the population sees it that way.

    SCOTUS is now at a juncture where they have to choose between their precedents and their legitimacy.

  • Bingo||

    I think it's more likely they'll find some way to say that the mandate is not Constitutional without actually overturning any precedent set by Wickard, simply because the mandate is that unpopular.

  • ||

    I think it's more likely they'll find some way to say that the mandate is not Constitutional without actually overturning any precedent set by Wickard,

    Oh, I would be shocked if they explicitly overturned anything.

    But I don't think they can throw out the mandate without creating conflict with Wickard and its progeny.

    Any decision that throws out the mandate will set off decades of new lawsuits while the Court struggles to create, out of whole cloth, some sort of principled limits that preserve most of their Commerce Clause cases while ignoring the logical extension of those cases to individual mandates.

  • Charlotte Corday||

    I agree. And that is why I think they will overturn the mandate. They care deeply about the legitimacy of the court. And I think they were deeply affected by the reaction to Bush v. Gore. It is no coincidence that for years the Court refused to consider the 2nd Amendment to be an individual right and then suddenly decided it was right after public opinion turned in favor of the issue.

    They are going to be loath to affirm the mandate given its unpopularity.

  • Joe M||

    They are going to be loath to affirm the mandate given its unpopularity.

    They...

    I'm pretty sure at least two of the justices would affirm the mandate no matter what.

  • Charlotte Corday||

    I meant the majority, meaning more than anyone Kennedy and Roberts, the Court's two main political animals.

  • ||

    This.

    I'm still wondering, among other things, how the left will be able to maintain that abortion isn't covered by the Commerce Clause if this is upheld. They may end up rueing the day they put this weapon into the fedgov's hands.

    Perhaps the left is hoping that the Court will strike down the mandate, just in time to fire up their base for the elections. They'll also do their best to convince independents that striking down the mandate means that those meanie conservatives "are taking away your right to health care".

  • Kwanzaa Cake||

    I think they'd admit that abortion is covered by the commerce clause but it is nonetheless off limits b/c it is in the penumbras of the bill of rights. This is the living constitution liberals have created -- the government has limitless powers, but we make occasional exceptions for stuff we really like.

  • ||

    to pretend that we have a national government of limited, enumerated powers

    Sadly, I gave up on this idea a few years ago.

  • Winston||

    My question on this is: Why was Nick allowed to do the interview without The Jacket's presence? It's common knowledge that TJ is the real brains of that operation.

  • ||

    drat! I got to wait to get home from work to see him with that thing on.

  • ||

    I mean, not on.

  • ||

    I hear tell he tires of us constantly referring to him as The Jacket. Maybe he's retired The Jacket in an effort to set that era of his life behind him.

    Will he suffer the same fate as post-haircut Metallica and never write a decent album again? I say the answer is clearly yes.

  • Butts Wagner||

    If we get a 3 hr long documentary about Nick hiring a life coach who doesn't actually do anything, I'm in.

  • ||

    Seems that Justice Kennedy expressed some skepticism regarding the individual mandate and "[creating] commerce in order to regulate it." Since he's considered the "key vote" here, I'm hoping this is a good sign. Any of you court watchers have an opinion on this?

  • fish||

    Seems that Justice Kennedy expressed some skepticism....

    When the PelosiCare drum circle outside of the Supreme Court are weeping like war widows I will feel some relief!

    Until then nothing!

  • ||

    When the PelosiCare drum circle outside of the Supreme Court are weeping like war widows I will feel some relief!

    Relief, my friend, is a far-off thing; right now I'm just looking for a glimmer of hope.

    As for Pelosi and her coven, I like to imagine their reaction, should they lose this one, will be more akin to the wailing of banshees.

  • Salty Ham Tears||

    May the streets become flowing rivers of salty ham tears, as this will fill my heart with joy!

  • fish||

    OT: Under government supervision airline security never better!

    http://newyork.cbslocal.com/20.....s-per-day/

  • ||

    What about the bare fact that federal law actually *bans* inter-state sales {so...'commerce'} of health insurance?

    Can some wicked smaaht lawyer explain why this hasn't been raised at all?

    In other words - if the mandate stems from the enumerated power to regulate interstate commerce, but by law, there is not interstate commerce.... how is it that the commerce, which is not interstate by law, can be regulated as interstate commerce by law?

    I'm not really being glib - does this sound in the 'substantial affects' doctrine.... I feel like something like this argument could/should have been used in the Raich medical marijuana case....

    Presumably I'm missing something obvious to legal folks - okay, but what is that?

  • ||

    Can some wicked smaaht lawyer explain why this hasn't been raised at all?

    You rang?

    Its quite simple, actually. In Wickard, SCOTUS state that the Commerce Clause gave Congress authority to regulate activity that wasn't commerce, and wasn't interstate, as long as it directly or indirectly, in the aggregate, affected interstate commerce.

    I mean, hell, if Congress can regulate plants that never leave your property, it can certainly regulate health insurance that is offered only intra-state.

  • shrike||

    Are you thinking what we're thinking?

  • Rhet Orical||

    Is it closer to Cleveland, or by train?

  • Max||

    Can the government make you contribute to Social Security? Oh yeah, I forgot they can. By the way, the government is not forcing you to buy insurance. Either you buy insurance or you pay a penalty. What happens if you don't pay into Social Security? You pay a penalty. This seems like a no brainer when you remove the politics

  • Hyphenated American||

    Max, my boy, "Social Security" is a tax on wages and income. The mandate is not a tax - says the greatest legal authority of all times, Barack Hussein ibn Obama.

  • Copernicus||

    I don't pay into SS and I don't pay a penalty.

    What's your next argument?

  • ||

    - or when you've rermoved your brain

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