The Nuts and Bolts of the ObamaCare Ruling
Wednesday, February 02, 2011
The Nuts and Bolts of the ObamaCare Ruling
By: Randy E. Barnett and Elizabeth Price Foley, Wall
Street Journal
For months, progressives smugly labeled the legal challenges to
ObamaCare as "silly" or even "frivolous." Today their confidence
must be severely shaken.
Late Monday afternoon in Pensacola, Fla., U.S. District Court
Judge Roger Vinson delivered the second major judgment that the
centerpiece of the Patient Protection and Affordable Care Act-the
"individual mandate" that forces Americans to buy health insurance
whether or not they want it-is unconstitutional.
In December, District Court Judge Henry Hudson ruled against the
mandate in a separate lawsuit brought by the state of Virginia. But
Judge Vinson's sweeping and powerfully reasoned decision this week
went much further, striking down the entire health-reform law on
the grounds that the individual mandate was not severable from the
rest of the statute. And the plaintiffs in Judge Vinson's courtroom
included the attorneys general of 26 states, not just one. His
opinion thus casts a dark shadow over ObamaCare until the Supreme
Court issues a final ruling on the matter.
Consider the problems posed by the insurance mandate. The Obama
administration argued that it was supported by the Commerce Clause,
which gives Congress the power to regulate interstate commerce.
True enough, insurance is commerce, but not buying insurance is the
antithesis of commerce. Commerce has always been understood as
requiring economic activity. This was the rationale Judge Hudson
adopted in striking down the individual mandate in the Virginia
case.
The government's lawyers in the Florida case insisted that not
buying health insurance was somehow different from a failure to buy
other products like clothes or food. They said health insurance was
"unique" because, eventually, everyone will seek and obtain health
care. And if they aren't insured, the costs will be shifted onto
others, thus substantially affecting commerce.
Judge Vinson rejected this argument, recognizing that "not
consuming" other products, such as food, is also unavoidable and
can have substantial effects on other commercial markets. "There is
quite literally no decision that, in the natural course of events,
does not have an economic impact of some sort," he wrote. "The
decisions of whether and when (or not) to buy a house, a car, a
television, a dinner, or even a morning cup of coffee also have a
financial impact that-when aggregated with similar economic
decisions-affect the price of that particular product or service
and have a substantial effect on interstate commerce."
Recognizing the vulnerability of relying on the Commerce Clause
alone, the Obama administration in the Florida case shifted its
emphasis to the Necessary and Proper Clause of the Constitution.
That clause empowers Congress to enact "all Laws which shall be
necessary and proper for carrying into Execution" its enumerated
powers. As the Supreme Court has repeatedly explained, the
Necessary and Proper Clause does not expand the scope of Congress's
enumerated powers. Instead, it gives Congress the ability to select
among various means of exercising them-for example, the enumerated
power to "establish post offices" necessarily and properly includes
a power to print stamps.
The Obama administration claimed that the individual mandate is
a necessary and proper means of carrying out its reforms in the
health-insurance market. These reforms include requiring insurers
to offer coverage to those with pre- existing conditions, to extend
coverage to dependents up to age 26, and to eliminate lifetime
coverage caps. Because these reforms make health insurance more
expensive, the government's lawyers claim that unless everyone is
forced to buy health insurance, too many healthy people will sit on
the market sidelines as "free riders" until they become ill. So in
order to make the "reformed" health-insurance market work, it's
necessary and proper to force everyone to buy insurance.
Judge Vinson flatly rejected the administration's attempt to
escape the restrictions of the Commerce Clause by appealing to the
Necessary and Proper Clause. His decision acknowledges that, while
reforming an insurance market is a regulation of commerce, Congress
cannot artificially create its own "free rider" crisis in the
insurance market and then use that crisis to justify an otherwise
unconstitutional mandate as "necessary and proper" to save the
market from collapse.
This novel use of the Necessary and Proper Clause, if allowed to
stand, would fundamentally transform our constitutional scheme from
limited to unlimited federal power, narrowing the scope of
individual liberty. In Judge Vinson's words, "the more harm the
statute does, the more power Congress could assume for itself under
the Necessary and Proper Clause. This result would, of course,
expand the Necessary and Proper Clause far beyond its original
meaning, and allow Congress to exceed the powers specifically
enumerated in Article I."
One crucial difference between the Florida and Virginia
decisions relates to the breadth of the remedy. While both courts
agreed that the individual mandate was unconstitutional, the
Virginia decision merely declared the mandate alone to be
unconstitutional-the rest of ObamaCare was unaffected. But Judge
Vinson concluded that the individual mandate could not be "severed"
from the rest of the law, and so the entire law must be struck
down.
The judge had little choice: The Obama administration itself
argued that the individual mandate was inextricably intertwined
with the rest of ObamaCare. So if the mandate fell, the whole
scheme was doomed to collapse as a legal matter. "There are simply
too many moving parts in the Act and too many provisions dependent
(directly and indirectly) on the individual mandate and other
health insurance provisions," he held, "for me to try and dissect
out the proper from the improper, and the able-to-stand-alone from
the unable-to-stand-alone."
The Obama administration attempted to cloak an unprecedented and
unsupportable exercise of federal power in the guise of a
run-of-the-mill Commerce Clause regulation. When the weakness of
that theory was exposed, it retreated to the Necessary and Proper
Clause and the taxing power. Judge Vinson's decisive rejection of
all these theories is another significant victory for individual
liberty-the ultimate purpose of federalism-and it lays the
intellectual groundwork for every decision on the mandate yet to
come.
Mr. Barnett is a professor of constitutional law at
Georgetown University Law Center. Ms. Foley is a professor of
constitutional and health care law at Florida International
University College of Law.