Scrapping Obamacare Should be a Constitutional No Brainer for Conservative Justices

The procedural trickery used by the Democratic Congress makes the law illicit.


Birthdays are joyous events—unless you doubt you'll make it to the next one. That might be the case with President Obama's health care reform law. It turned two last week, but the Supreme Court is now hearing a challenge to the individual mandate, a central provision of the health reform law that will require all Americans to buy health coverage. If the court scraps it, Obamacare will be effectively dead.

The mandate is an affront to a free society, and the court's conservative justices know that. But their qualms about the limits of their own powers might prevent them from killing it. However, if there was ever a law that should override these qualms, it's this one.

The four liberal justices, all of whom are expected to vote lock-step for the mandate, suffer from no equivalent qualms—a telling fact. By contrast, among the conservatives, only Justice Clarence Thomas is considered a reliable "no" vote: He's an "originalist" who believes that the court's fundamental job is to ensure the fidelity of our laws to the Constitution.

The other four conservatives worry more about two additional things: Stare decisis, the idea that judges should refrain from overturning precedents, even wrong-headed ones; and "judicial modesty," the notion that the court needs to defer to Congress except in extreme cases.

Stare decisis concerns are not irrelevant because the court has given Congress expansive powers to regulate economic activity under the Commerce Clause that it can't just take away. The original sin here dates back to Wickard vs. Filburn in 1942, when the court upheld Uncle Sam's authority to prevent an Ohio farmer from producing wheat on his own farm to feed his own livestock because that would supposedly undercut federal efforts to boost national wheat prices.

Randy Barnett of Georgetown University, however, argues that despite Wickard's sorry jurisprudential lineage, there is no precedent for allowing Congress to regulate economic "inactivity." To date, Congress has only regulated economic activities that Americans choose to engage in. It has never required them to actually engage in an activity under the threat of fines. If the court lets this logic stand, notes Barnett, "Congress could constitutionally require every American to buy a new Chevy Impala every year."

That is a compelling rebuttal of stare decisis, but what about judicial modesty? Does nixing the individual mandate pose a big problem for this commitment? No.

Judicial modesty is certainly a virtue. It prevents courts from casually overturning laws enacted by a duly elected Congress and substituting the wishes of unelected judges for the will of the voters. But acts of Congress are not acts of God, never to be questioned. Indeed, to guard against the tyranny of the majority, Federalist 78 explicitly gave courts the authority to overturn laws that violated the constitutionally guaranteed rights of minorities.

But the problem with Obamacare is not that it represents the illicit wishes of a majority — it's that it doesn't represent majority wishes at all. According to recent polls, two-thirds of Americans want the individual mandate repealed. Indeed, the law has never enjoyed majority support. Still, the Democrat-controlled Congress shoved it down the public's throat through wildly unorthodox methods.

To overcome resistance within its own party, it used horse-trading so brazen that horse traders would be embarrassed. Remember the Louisiana Purchase? This deal bought Democratic Sen. Mary Landrieu's support by cleverly writing disaster relief rules so that only the Bayou State qualified for $100 million in aid. Then there was the Cornhusker Kickback. Public outrage forced Democrats to withdraw this deal. Otherwise, federal taxpayers would have been on the hook, forever, for the entire tab for Nebraska's Medicaid program in exchange for Sen. Ben Nelson's "yes" vote.

Despite all this, Democrats could not pass the law through normal parliamentary procedures. The election of Republican Scott Brown of Massachusetts to the seat left vacant by Sen. Ted Kennedy's death ensured that. Brown explicitly ran on a platform of stopping the Obamacare train wreck, and his election gave Senate Republicans the 41 votes they needed to filibuster the law.

The only way for Democrats to avoid the filibuster was for the House to pass the Senate version exactly as written to avoid another Senate vote. However, opposition to the Senate version ran so deep in the House that Democrats had to cut an eleventh-hour deal promising pro-life Democrats that the law's abortion-related provisions would be eliminated through a procedure called reconciliation. Under it, the House appended the pro-life revisions to an unrelated bill the Senate had already passed — one it could approve by a simple majority vote.

If such congressional transgressions against voters don't justify the jettisoning of judicial modesty, then what does? A formal burning of the Constitution by Congress? Still, 6th Circuit Judge Jeffery Sutton, a conservative believer in judicial modesty, couldn't bring himself last year to throw out Obamacare on grounds that the proper remedy for it lay at the ballot box, not the courthouse.

But even if the next Congress repeals Obamacare, Supremes who follow Sutton's logic and refuse to kill the individual mandate will still have created a standing precedent allowing Congress to regulate inactivity. This would provide the body a huge new opening to expand its powers.

The Supremes have a constitutional duty to check out-of-control government. Letting Obamacare live on because they have tied themselves in knots over judicial niceties would be an abdication of epic proportions.

Reason Foundation Senior Analyst Shikha Dalmia is a columnist at The Daily where this column originally appeared.