Happy Birthday, ObamaCare! Now Get Ready for the Supreme Court

Two years ago today, President Barack Obama signed the Patient Protection and Affordable Care Act into law at a special ceremony in the East Room of the White House. On Monday, the U.S. Supreme Court kicks offs three days of oral arguments surrounding the constitutionality of that law, including its controversial requirement that all Americans buy or secure government-approved health insurance. That's what I call a birthday bash.

As you prepare for next week's historic confrontation between the Obama administration and ObamaCare's legal challengers, get yourself up to speed with this selection from Reason's two year-plus coverage of this extraordinary constitutional showdown.

Don't Buy It: The crazy constitutional logic of the individual insurance mandate. By Jacob Sullum.

Obama Administration Lawyer: Health Insurance Is Neither Shoes Nor Broccoli. Good to Know! By Peter Suderman.

Obama Administration Says Health Care Law Is All or Nothing. Judge Gives Them Nothing. By Peter Suderman.

Are There Five Supreme Court Votes Against ObamaCare? By Damon Root.

Will Kennedy Vote Against the Health Insurance Mandate? By Jacob Sullum.

Can't We Just Abolish the Supreme Court Before It Abolishes ObamaCare? By Damon Root.

Judges Agree You Don't Have To Do Anything In Order to Be Engaged in Activity. By Peter Suderman.

Strict Scrutiny: ObamaCare and the long slow death of conservative judicial restraint. By Damon Root.

Clinton-Appointed Federal Judge Strikes Down Individual Mandate. By Damon Root.

ObamaCare's Medicaid Mandate: Is the health care law's Medicaid expansion unconstitutional? By Peter Suderman.

Antonin Scalia's ObamaCare Problem: The Obama administration repeatedly cites the conservative Supreme Court justice in defense of its health care overhaul. By Damon Root.

How ObamaCare Is Exposing Conservative vs. Libertarian Divisions on the Supreme Court. By Damon Root.

ObamaCare's Defenders Still Aren't Taking Challengers to the Mandate Seriously. By Peter Suderman.

Click below to watch "Wheat, Weed, and ObamaCare: How the Commerce Clause Became All Powerful," the Reason.tv documentary cited on page 47 of U.S. District Judge Roger Vinson's decision striking down the individual mandate.

Comments

[AlmightyJB]

Ron Paul Ad: Etch A Sketch

http://www.youtube.com/watch?v=d5pLrwINs1o

[Alack]

Pretty tight turnaround on that one. I'm impressed.

[R C Dean]

Why do I suspect that 98% of SCOTUS's effort in this case is going to be devoted to finding a way to dodge all the real issues, and come up with some convoluted technicality to kick the can?

[anon]

I dunno. Obama's gotten on the bad side of at least 4/9 of the justices. A lot rides on Kennedy for this one.

[Almanian SMITH]

STEVE SMITH "RIDE KENNEDY" LOTS! GO TO COMPOUND, RIDE HIM LIKE PONY!

OH, DIFFERENT KENNEDY. STEVE SMITH WILLING TO RIDE SUPREME COURT JUSTICE KENNEDY,TOO! STEVE SMITH UP FOR ANYONE WHO LIKE HIKING.

[Tman]

I just can't fathom how the Justices can possibly think that this isn't a gross violation of the powers afforded to the Federal government through the constitution.

At least with Filburn and Raich the justices were able to argue (incorrectly in my opinion) that the individuals were voluntarily contributing to the market in question.

The idea that by simply being alive you are involved in the health care market is just so completely at odds with the fundamental principles behind the constitution it's insane.

I expect to be disappointed.

[MNG]

"I just can't fathom how the Justices can possibly think that this isn't a gross violation of the powers afforded to the Federal government through the constitution."

Because the clause says quite plainly and explicitly that it grants Congress "the power to regulate commerce...among the several States."

Health care is commerce among the several states.

I don't see how there's much of a case on other side.

[MNG]

The other side seems to rest their case on:

1. Activity can't be mandated-but no inactivity/inactivity distinction is mentioned at all in the clause, just a broad "power to regulate." Only if you read such a distinction into the concept of regulate do you get that, and there seems to be no good reason to import that bit of political philosophy into it.

2. the "spirit of the Constitution"-such a broad grant seems contrary to the overall spirit of limited government behind the constitution itself.

Number two is the better argument I think, but notice how vague it is. The other side has a literal reading of the text.

[John]

In the end, Wickard was wrongly decided and probably has to go.

[Restoras]

That might be the very best end-result of this whole, sorry episode.

[MNG]

It won't be because that's not the issue. With some sad irony the case is about something the text says nothing about, while what the text explicitly prohibits is now "well settled law."

[MNG]

I agree Wickard was wrongly decided, in fact, I think that one is the one people should bitch about.

The clause says nothing about "activity/inactivity" but it does say "AMONG THE SEVERAL STATES." there was no such trade in wickard, hence, it was wrongly ruled imo.

[anon]

Wickard is the basis of so many insane and arbitrary commerce-clause laws today that it'll *never* be overturned.

Why, it might result in a free market or something. And we can't have that.

[MNG]

"Wickard is the basis of so many insane and arbitrary commerce-clause laws today that it'll *never* be overturned."

Actually, this is why it should be. What a flimsy edifice for so much.

The thing with Wickard is that there is nothing vague about it. There are only two explicit limits in the text of the Commerce clause: that only "commerce" can be regulated and that it must be "among the several states." Wickard just ignored one of the two limitations, and then we wonder why we have very little limitations on federal power under the clause...

[anon]

Actually, this is why it should be. What a flimsy edifice for so much.

I didn't say what was right; I simply stated the truth of the matter.

[Tman]

If I'm not using healthcare services I'm not involved in interstate commerce.

Period.

The End.

Full stop.

[MNG]

It doesn't say "to regulate all involved in commerce among the states" it says "commerce among the states."

There is health care commerce among the states. A mandate is a (one) way to regulate it.

Full stop?

[John]

There is agriculture trade among the states. Forcing people to buy certain kinds of foods that are deemed healthy is one way to regulate it.

Full stop.

[MNG]

I think the clause grants that power John. It could support a brocoloi mandate (shudder), yes.

But thank goodness not every question is constitutional. I don't see a brocoli mandate coming down the pike anytime soon, in fact, I expect if this is not struck down it will be repealed in a few years.

[John]

I think the clause grants that power John. It could support a brocoloi mandate (shudder), yes.

And that is completely ridiculous. There is no evidence whatsoever that the framers intended the commerce clause to be that broad. Indeed, reading that way essentially destroys the entire federal system the document was designed to create. Could it have meant what you say? Sure. But words can have different meanings. And there is simply no way that "regulating commerce among the states" could mean that in this context.

If this law stands, our entire federal system ends. We will have finally created a single federal super state.

[Barely Suppressed Rage]

I think the clause grants that power

I am very certain that the people who wrote it and ratified it would disagree with you, as would SCOTUS had the question been presented to them 100 years ago.

Such a power never had been even suspected to lurk in the enumerated powers until the Court suddenly "discovered" meanings in the Constitution that nobody previously ever had any reason to even suspect could be found there.

[Tman]

Again, if I'm not using Healthcare services I'm not in need of being "regulated" via the ICC.

Forcing me to purchase a product is not something the constitution allows the federal government to do, period.

[MNG]

"Forcing me to purchase a product is not something the constitution allows the federal government to do, period."

This is just a conclusory statement, I hope clement has something better than this!

[Tman]

But is it incorrect mingey?

[MNG]

Yes, it is.

The clause is what it is, it doesn't mention activity or inactivity, it just gives a broad power to regulate "commerce among the states." the only way to get an inactivity distinction is to read some fundamental part of libertarian political philosophy into the concept of "regulate."

[Tman]

it doesn't mention activity or inactivity, it just gives a broad power to regulate "commerce among the states."

How in the hell do you come up with the idea that inactivity is somehow commerce?

[MNG]

Buying health insurance is commerce.

And that is what the mandate makes you do.

See, you're reading into the text this idea that forcing someone into commerce is somehow not really commerce, that it must be limited to already existing commerce. But that's not inherent in the concepts in the text, that's part of a particular philosophical viewpoint about proper limits of government.

[Tman]

you're reading into the text this idea that forcing someone into commerce is somehow not really commerce,

No, that's not what I'm saying at all. I'm saying that forcing me to buy something isn't a power afforded to the Federal Government via our Constitution.

Period.

The End.

Full stop.

[MNG]

" I'm saying that forcing me to buy something isn't a power afforded to the Federal Government via our Constitution."

Sure it is, under the commerce clause.

Since you're just repeating your conclusion I might as well repeat my reasoning:

Because the clause says quite plainly and explicitly that it grants Congress "the power to regulate commerce...among the several States."

Health care is commerce among the several states.

[Tman]

Sure it is, under the commerce clause.

Which Constitution do you have? My doesn't say the ICC gives the federal government the right to force me to engage in commerce I do not want to engage in.

[Joe M]

In order to regulate commerce, it has to exist in the first place. Compelling someone to participate is not the same as regulating something that's already there.

[Old Mexican]

Re: MNG,

Buying health insurance is commerce.

And that is what the mandate makes you do.

Again, your English must be different from the one known by countless other millions. How can "Regulate" mean "Make"? For commerce to be regulated, it must already exist. The mandate thus does not mean and cannot be made to mean to CREATE commerce - you and your liberal brethren are just making shit up.

[TOWM]

Buying health insurance is commerce.

And that is what the mandate makes you do.
----------

Under this argument the government forces people into an act in order to be regulated. Not different than forcing people to buy drugs in order to arrest them for buying drugs.

[Dick Fitzwell]

It doesn't mention activity or inactivity because people with at least an average amount of intelligence understand the distinction. It doesn't need to be pointed out. Inactivity = not participating = no power to regulate. Activity = engaging in commerce = must play by the rules.

It takes an incredible amount of dumbassery to twist "regulate commerce...among the several states" into "we can make them buy whatever we want."

[MNG]

Not at all. buying things is commerce. Making you enter into the very commerce the clause allows regulation of is how the bill regulates commerce. By making you be a part of it.

[Joe M]

Making you enter into the very commerce the clause allows regulation of is how the bill regulates commerce.

Of course! The Constitution was a blue print for socialism, obviously.

[WTF]

Clearly it was a blueprint for unlimited federal power. We should thank MNG for educating us.

[MNG]

"In order to regulate commerce, it has to exist in the first place. Compelling someone to participate is not the same as regulating something that's already there."

This is an assumption you are reading into it. It doesn't grant "the power to regulate already existing commerce." It says the power to regulate commerce. People buying insurance are engaging in commerce, and the bill regulated commerce by mandating participation in it.

[Dick Fitzwell]

And where does Congress get the power to mandate participation from?

Ohhhhh....You must be spoofing. Nobody would say something this stupid unless it was for comic relief.

[Joe M]

It doesn't grant "the power to regulate already existing commerce."

Oh my FUCKING god, are you just completely disingenuous in service of your political goals? You've just stated that Congress has the power to regulate non-existent commerce!

I'm boggling.

[Spoonman.]

That's just stupid, Crow-Eating Dumbass.

[John]

If the commerce clause means that "regulating" allows for the federal government to force people to buy a product, what limit is there to federal power?

You are expecting us to believe that the Constitutional convention spent months drafting this document that balanced federal and state power only to completely eviscerate the entire federal system through a single limitless clause.

And remember, the Bill of Rights came later. So don't tell me that the power is limited by the Bill of Rights. There is simply no way the framers intended for the clause to mean what you say it does.

[MNG]

"You are expecting us to believe that the Constitutional convention spent months drafting this document that balanced federal and state power only to completely eviscerate the entire federal system through a single limitless clause."

As I said, you're invoking argument number 2 I used above.

"If the commerce clause means that "regulating" allows for the federal government to force people to buy a product, what limit is there to federal power?"

The limits handed down in Lopez and Morrison? So much for that argument...

[John]

Those are the only two limits? Okay, so then I guess they can force us to purchase guns for home defense, right? They can force people to buy certain foods. Perhaps not force you to eat them but buy them.

You really think that the convention meant to create a system whereby the federal government can mandate people's grocery lists?

[MNG]

Those are two applications of the overall limit John, it must be directly commercial activity.

Is it a great limit? No, but it is a limit, so the "without the right ruling there would be no limit" talk is demonstrably wrong. If there was NO limit then Lopez and Morrison don't exist.

[John]

Way to dodge the question. By your logic wouldn't the government be able to force people to buy virtually anything? And how can you possibly square that with the federal system.

Just because you can point to one or two obscure limits doesn't make your position any less a historical or ridiculous.

This is different than even Wickard. In Wickard the person at least engaged in the act of growing the wheat. Here, a person's very existence makes him part of commerce and subject not just to federal regulation but federally mandated behavior.

[MNG]

"By your logic wouldn't the government be able to force people to buy virtually anything?"

Yes, they would. But you're changing the goalposts, your first question was: "what limit is there to federal power?"

And those are not the same thing.

[John]

No. You are pretending that any limit at all is meaningful or somehow doesn't destroy the federal system.

[MNG]

Oh, so you now admit there are limits, those limits are just not meaningful or enough for you.

Progress.

[Restoras]

Please just don't make me purchase a fucking iPhone.

[MNG]

You don't like the iPhone? I think smartphones are pretty amazing. Or do you just not like Apple's?

[Ex nihilo]

Actually MNG, health insurance, not care, is not commerce amoung the serveral states. A person living in CO cannot buy a policy from a company in WY, you have to buy from a company in CO. This is one area where the government has made the commerce clause mute.

[MNG]

"Actually MNG, health insurance, not care, is not commerce amoung the serveral states."

This is an argument that only is found on ideological websites, no court, even the ones who have ruled against Obama care, have even entertained it.

Because by your logic McDonalds, which is locally franchised at every location, is not engaged in interstate commerce.

[Ex nihilo]

Actually since each McDonalds franchisee pays McDonalds Corporate, this money crosses state lines. Therefore it would be interstate commerce. However, I live in CO, I buy my health insurance in CO. No interstate commerce is conducted.

Courts may not have entertained this idea, but that does not mean it isn't valid. A plain reading of the commerce clause says "interstate commerce", that means commerce that crosses state lines. Health insurance is prohibited by law from passing accross state lines.

[MNG]

And my local, lisenced in MD only State Farm rep doesn't pay anything to State Farm?

This is why no court is even considering this argument.

[Ex nihilo]

Can you buy health insurance accross state lines? If you can, then interstate commerce, if no, then no interstate commerce.

[MNG]

Like I said, find me one court that has entertained this. Even the think tanks and such on the conservative side know this argument carries no water. State farm is a national agency with lots of little affiliates, it's involved in plain interstate, national commerce.

[Ex nihilo]

Can you buy health insurance accross state lines? I don't really care what courts have entertained or not, if the above answer is yes, then interstate commerce.

The courts at one time didn't entertain that blacks were people either, so that line of argument doesn't work with me. Either you can or can't buy accross state lines.

[MNG]

I can buy insurance from a local affiliate of a national company, like State Farm.

[Apogee]

I can buy insurance from a local affiliate of a national company

But you are prevented from buying insurance from a non-local affiliate, as well as collecting from a non-local affiliate. The corporate structure of the companies are entirely separate - the money, as well as the services, does not cross state lines. For legal purposes, they are, in fact, separate entities.

You could no more sue State Farm national for your problems with the local State Farm affiliate than you could sue Boeing for your problems with the local State Farm affiliate.

[Old Mexican]

Re: MNG,

Because the clause says quite plainly and explicitly that it grants Congress "the power to regulate commerce...among the several States."

I'm just a humble Mexican from a far away pueblito, MNG, and may not possess the sophistication you claim to have, but with the limited English at my disposal I cannot by all my might construe the commerce clause to mean that Congress can make any person buy something, as "commerce among the states" means trade from one to the other, not "control people's lives."

Or maybe your English is different from my English. What is more likely?

[MNG]

If you can't see how making someone buy something in an interstate market is not "commerce among the states" then yes, you are missing something...

[Old Mexican]

Re: MNG,

If you can't see how making someone buy something in an interstate market is not "commerce among the states" then yes, you are missing something

And you may be right, because *I* can't see a connection between making commerce regular (i.e. striking down tariffs and other impediments) and twisting arms into acquiescence to buy a product.

Just tell me what I am missing, MNG, or stop bullshitting me.

[MNG]

Making you buy something is making you engage in commerce.

[MNG]

And Congress has the power to regulate commerce.

The way it is regulating commerce here is by making some people engage in it.

It's not rocket science.

[Ex nihilo]

Congress can regulate commerce, they cannot force you to engage in it. This is a circular argument.

By your argument, I can mandate that everyone carry 5oz of drugs on their person at all times. Since you are now carrying drugs, I can bust you for drug trafficing.

[Joe M]

Seriously, how depressing is it that this is even up for debate? The Founders are spinning in their graves.

[Ska]

Green energy?

[O..K....]

So the commerce clause is not a liberty for the federal government, but some kind of positive right? If there is no commerce for them to regulate, they can force the creation of commerce so that they have something to regulate?

[H man]

Forcing me into doing something and then telling me how to do it isn't remotely constitutional.

[COMMERCE CLAUSE]

SSMMMMAAASSSHHHHH!!!!

[Almanian]

CAPTION: "Heil!"

[rather]

A politician is a politician is a politician
http://www.washingtonpost.com/....._blog.html

[Flyover Country]

Pretty weak.

Read the report. They were paid out of his CAMPAIGN account. Not tax dollars.

[John]

With the law still unpopular the White House has concluded that it is virtually impossible to change negative public opinions, particularly if Mr. Obama is front and center, a senior administration official said.

Instead, the White House wants to spotlight health-care officials and regular Americans who have benefited from the law, in hopes of draining politics from the issue. Involving Mr. Obama makes the matter more political and is therefore counterproductive to the long-term goal of boosting public support for the overhaul, the official said.

"Barack Obama is not a good spokesman. He actually polarizes the debate," said one person close to the White House who supports the health law. "The best people are doctors and nurses and normal people."

http://blogs.wsj.com/washwire/.....tab/print/

[Joe M]

Instead, the White House wants to spotlight health-care officials and regular Americans who have benefited from the law, in hopes of draining politics from the issue.

Like that isn't exactly what politics is all about. And of course some people are getting goodies out of the deal. The point is it's bad for both health care and the economy in general.

[rather]

I think the decision will be unexpected. I don't understand why they are debated to separate the mandate on the third day; didn't Obama's team drop the ball on that one?

[rather]

*debating*

[Arcaster]

IIRC, they didn't insert a phrase that would have protected different pieces of law, making it an all or nothing deal. I can't remember any of the particulars, but I'm pretty sure you're right.

[Old Mexican]

Re: rather,

I think the decision will be unexpected.

What do you mean? Is there another possible scenario besides the coin toss?

[rather]

Yes.
Do I know what it could be?
No.

I'm collecting my thoughts but I haven't even read Florida v. United States Department of Health and Human Services

[Barely Suppressed Rage]

Too many people completely misunderstand the proper role of SCOTUS in this issue - they see it as some kind of super-legislature, and argue that SCOTUS should support O'care because it is desirable public policy. They evidently can't grok the concept that SCOTUS does not and should not decide questions of this sort based on whether it is desirable from a policy standpoint - SCOTUS's job is to interpret and apply the U.S. Constitution.

[Barely Suppressed Rage]

P.S. Erwin Chemerinsky is a left-wing apologist hack.

[Ex nihilo]

It's not just the role of the SCOTUS on this issue, but all issues before the court. People want the court to bend the Constitution to fit their wants, "living document", and all that.

Unfortunately not many people want them to look at the Constitution and say "yes" or "no" on wheather or not a piece of legislation is constitutional.

[John]

http://www.washingtonpost.com/.....inions_pop

Good Charles Krauthammer column on how appalling this whole thing is.

[John]

The first comment is quite entertaining.

The mandate is to make those who want to freeload off the system when they become sick, to contribute at least a small amount into it.

Right Wingers are now defending the rights of Free Loaders to take advantage of all the rest of us. How come they are not making it possible for those same Free Loading types to just collect Insurance Payouts when ever they are in a accident or their home goes up in flames without ever having payed into coverage policies.

What next; Republicans will demand that...See More
User ID:http://washingtonpost.com/CdMKMzpQ0hreaRDr3iE9/XrE7VgS76krNWZjM5N3fM+++frlKkwhFQ==/

So the point of Obamacare was to make the uninsured bear more of their health care costs. Really? I don't seem to remember that being mentioned during the puppies and rainbows selling of it.

[Jimmy]

What are the odds on this passing?

[The Other Kevin]

I can't imagine that the people who wrote the Constitution would agree that:
1) A person just sitting in a chair and breathing is actively involved in interstate commerce.
2) Government can compel every single citizen to enter a contract with a second private party. This would mean that any private party with enough political clout could use the government to forcibly extract money from every citizen. That, to me, seems like a huge open window for abuse.

Do any of those statements sound like a government of limited, enumerated powers?

[H man]

In all fairness they can tax you and then spend that money how they see fit including subsidize a private company or citizen. The spending power issue is even more of a lost cause than Wickard.

Does forcing me to purchase healthcare violate my 5th amendment rights?
"nor shall private property be taken for public use, without just compensation."

[shrike]

All Power to the Imagination!