As you know, this blog has explored several ways whereby the proposed mandate that everyone obtain health insurance is unconstitutional. Ignoring entirely the advice of this blog, the Senate Finance Committee reported out a bill that included a mandate, albeit a watered-down one. In fact, it appears that any bill that will be voted on by Congress this fall will contain a mandate for individuals to obtain health insurance. This begs the question – if a health insurance mandate is passed and signed by the President, what does it really matter? Sure, Congress has pushed the envelope of constitutionality in the past, and rarely has it been struck down. But isn’t this just an academic debate among legal eggheads?
Sadly, the answer is no. Passing an unconstitutional health care mandate can only poison American politics, whether it survives a court challenge or not. Let me explain why.
Nightmare Scenario I: A Health Care Mandate Withstands Court Scrutiny
American jurisprudence is essentially a process of accretion. Accretion is a word used more frequently in geology, describing the layering of rock over the ages. Imagine yourself standing on the edge of the Grand Canyon, staring at the wondrously colorful scene. You see before you the dozens of layers of soil, rock, and sand that have been laid down, one upon the other, over centuries. At the time each layer was established, those who were there to see it knew only of the layer being created, or of the layer beneath. With a little work, they could dig slightly deeper to see one or two layers below that. But they stood on all the layers that went before them, even if they never saw them. They may have heard stories of them, or seen pictures, but they could not truly know the deepest rock upon which they stood. And the same goes for you — though you stand on the top of all the layers laid bare by the Canyon, walk away and you will know only the rocks of yesterday, and the soils of today.
So it is with the law. We like to think of philosophies like originalism and natural law as a harkening back to the way things used to be, but in many ways that’s not correct. No serious legal thinker today advocates a return of U.S. law to the way it was at the time of our founding. Sure, the concepts of checks and balances, separation of powers, federalism, and limited government spring from the constitutional well, and we would be wise to drink from it more often. But while James Madison did not preconceive the Federal Communications Commission, he also couldn’t conceive of the telephone. Jefferson’s dream of an agrarian society did not include ConAgra or ADM. And while Lincoln’s vision for America included a transcontinental railroad stretching across the frontier, his imagination could not stretch as far as the moonshot at the center of JFK’s New Frontier. This isn’t a pitch for a “living constitution,” but it is a recognition that the very things we consider America’s greatest achievements have always forced America’s political leaders to adjust the structure of our government to fit the circumstances.
In the early years of the republic, these changes were enshrined in formal constitutional amendments. When we decided that women should vote, we passed the 19th Amendment. When we believed that slaves should be free, we passed the 13th Amendment. When we determined that the federal government couldn’t be funded on tariffs and excises alone, we passed the 16th Amendment. No one believed that these things could be accomplished through a court case — it took action by the people to alter the nation’s charter in such dramatic ways.
That all changed sometime around the middle of the 20th Century. A series of Supreme Court cases interpreting the New Deal expanded the scope of permissible federal regulation under the Commerce Clause, leading Congress to feel emboldened to take on most any economic challenge it might consider worthy. While a few cases in recent years have set the outer bounds of that assumption, it remains a rather safe one. Similarly, the cases enforcing the revolution in civil rights in the 1950s-70s, together with the Warren Court’s expansion of criminal rights under the Due Process Clause, gave litigants new confidence that the courts could (and would) do what they could not do before the legislature. That’s not to pass judgment on any of the substantive decisions made by the Court during those years, many of which embody high principles and achieved just outcomes. But from a procedural perspective, they lifted government off its constitutional moorings and into a land of judicial fiat. Language mattered less than meaning, and meaning was suddenly found in penumbras and political movements that could never be obtained in the text itself.
Consider now the aspirations of the “originalism” of modern jurists. When Justice Scalia hears a case about the Federal Communications Commission, he does not inquire whether the very idea of independent executive agencies, free to operate beyond the direction of the chief executive and governed by individuals not subject to removal by the president, is even remotely allowed by the Constitution. Rather, he inquires about issues of administrative law — an entire body of rules that depend on the assumption that administrative agencies themselves are constitutional. No one questions this assumption. I do not seek to question it today. But there lies the accretion. Some court decades before decided that independent administrative agencies were not per se unconstitutional. The next court decides that such agencies must behave in a certain manner to avoid becoming unconstitutional. The court after that decides whether the independent agency met the earlier court’s expectations. And so on, until the idea of questioning the existence and validity of the agency itself becomes absurd — a matter of precedent that is buried under volumes of smaller, precise decisions about agency behavior. Courts detest upsetting the precedential applecart, even to the point of consciously avoiding principled objections to the basis of the precedent.
Now think about the foundation we are establishing with the health care mandate. A constitutional challenge to the mandate would embrace one or more of the arguments I laid out in my earlier posts:
1) the Commerce Clause does not empower the federal government to require citizens to engage in commerce;
2) the Due Process Clause does not permit the government to order a person to give his cash to a third party;
3) the First Amendment does not permit government to force one to spend her money in a manner that violates her religious beliefs;
4) the Article I power to tax does not include a power to require an individual to give his property directly to a third party; or
5) the Thirteenth Amendment does not permit government to require a citizen to give the fruits of his labor to another on condition of his citizenship.
For a Court to deny such a challenge, it must do one of two things — either say that the mandate does not violate these principles, or that the mandate does violate these principles, but the principles are not protected by the Constitution. Either of these decisions would be catastrophic for the cause of liberty. Take Argument 1, for example. If a court says that the health insurance mandate does not require a citizen to engage in commerce, it is simply ignoring the plain language of the statute. Of course the statute requires one to engage in commerce — if you don’t buy health insurance today, you must buy it tomorrow or be punished. Buying a health insurance policy is about as classic a commercial transaction as there is. Denying the violation here, in fact, is tantamount to denying the principle, because it says to the world that the Court will go to any lengths to permit Congressional action in this sphere. The plain evisceration of the principle would be equally destructive, then. For the Supreme Court to say that Congress can force a citizen to engage in commerce is to lift all regulatory limitations from the federal leviathan. Congress wants you to buy an electric car – you must buy an electric car. Congress wants you to buy a computer – you buy a computer. Congress wants you to visit a national park this year – you visit a national park. Don’t have the money? Doesn’t matter – Congress say, you do.
I won’t belabor this by going through the analysis with each of the five principles above, but feel free to do it yourself – and be scared. Very scared.
Nightmare Scenario II: A Health Care Mandate Is Struck Down by the Courts
So you’re thinking: Marque, no court in America would allow Congress to do those things. Surely they would strike it down, at least on one of those five grounds. Okay, I say, I agree with you. So assume it does that. Now what?
First you have to consider what the world will be like when a court (likely the Supreme Court) makes a final determination on this issue. It will likely be at least one year, possibly two or three, after the law originally passes. Based on the timeline laid out in the legislation considered to date, that means we’ll be well into the transition period to Obamacare. The government insurance bureaucracy will be well-established, if not printing policies and taking payments. The health care industry will be consolidating like mad, trying to create insurance supergiants that might possibly be able to compete with the public “option” plan. Thousands of doctors will be planning their exit from the medical field, and hundreds of hospitals will be deciding if they can stay in business under the absurd cost controls that will be imposed. Despite the public outcry surrounding the bill, Americans will largely be adapting to their new health insurance overlords. Most likely, no one will have yet been forced to make any uncomfortable decisions, although premiums might be spiking in anticipation of the incipient government mandates. Like Americans tend to do, they will be making the best of the situation, and given the long phase-in of the bill (timed to ensure no pain before Obama’s reelection effort in 2012), they might even be OK with it.
The one thing everyone is assuming, however, is that they will be forced to buy insurance. Their financial advisors are telling them that. Their employers are telling them that. Their friends complain about it around the water cooler (although some of them are happy that all those freeloaders will finally be forced to kick in their fair share). Two or three years out from the legislative wars of 2009, Americans are largely OK with the idea that they will have to buy health insurance from someone. After all, we all have to buy auto insurance, right?
Suddenly, the piddly court case filed by some public interest law firm like the Institute for Justice gets before the Supreme Court. To the media’s stunned surprise, the Court seems to take it seriously. Weeks, nay months, of speculation ensues, and the punditocracy assumes that the Court could never, ever undo the centerpiece of Obama’s health care masterpiece. It’s the only thing keeping costs under control, they cry! It’s only fair for everyone to participate, they fume! Without the mandate, the whole house of cards may fall, they scream! Then, the unthinkable happens. 5-4, the mandate is struck down.
Hooray, right? WRONG. Two years is an eternity in politics, and in that eternity the American health care system will have been remade. Small and large businesses alike will have begun paying for insurance for their employees. Insurers will have adapted to the new reality, welcoming the new insureds to the mix and making fundamentally different business decisions based on the law’s byzantine provisions. The government bureaucracy will have printed new rules, established far-reaching regulations and begun remaking the way we receive health care. It will be virtually impossible to return to the way things were before the mandate — it’s just too big to fail, and too much money will have been spent in furtherance of the Obamacare vision.
How to fix the mandate, therefore, will become the central focus of Congress. I say this regardless of whether Republicans or Democrats are in charge. The momentum behind the program will simply be too great to turn back, and the only way to go forward is to patch things up. But how can you fix the mandate, you ask? Easy – you do something constitutional that has the same effect. To wit:
1. Congress nationalizes health care — premiums become taxes. Remember that the only reason the mandate fails in the tax analysis is that the citizen is forced to pay a third party. If the citizen is forced to pay the government, the government has total discretion to do what it will with the funds. Essentially, this would make everyone part of Medicare. It’s exactly what everyone is afraid of. It’s Canada, Great Britain, and Obama’s heart’s desire. Congratulations, conservatives — you just backed into single payer.
2. Congress ends the individual mandate — and makes it a corporate/government mandate. The Supreme Court has never given corporations the same constitutional protections it gives individuals. Thus, by forcing employers to grant health care to their employees, they are regulating commerce, not coercing individuals to buy something against their will. What about the unemployed? A massive expansion of Medicaid has the federal government picking up the tab (likely funded by the states, stealth taxes on health plans, or on “the rich”). The cost of health insurance skyrockets as all the same problems in the current system are writ large, and the new taxes cripple the economy.
3. Congress conditions receipt of all federal funds on enrollment in the public option. While the Supreme Court might restrict Congress’ ability to regulate commerce, it will almost never touch Congress’ ability to attach strings to its spending. Thus, Congress requires everyone receiving federal funds — whether it be a student taking out a loan, a construction company receiving a federal contract, or a university taking a research grant — to participate in the public option (or otherwise obtain health insurance). Even worse, the government requires everyone to report whether he has obtained health insurance on his tax return — giving the feds a ready-made list of folks to target for enforcement. This doesn’t cover everyone, but it does create a federal health insurance behemoth so expansive that it becomes a de facto mandate. No one wants to think about whether it’s touched federal funds in some oblique way that might require it to provide health insurance, so every company and individual obtains health insurance out of an abundance of caution. The shadow mandate is just as coercive.
4. Pass a constitutional amendment. Ironically, the crisis of the missing mandate may be the only kind of political earthquake that could give rise to a meaningful constitutional amendment in today’s Washington. Since the political establishment believes that it can do pretty much whatever it wants these days, the only calls for amending the Constitution in the last 20 years have been for limitations on government power (a balanced budget amendment; a 2/3 majority requirement for raising taxes). But if Congress doesn’t like the options it gets from the Court in the wake of a decision against the mandate, it may fast-track a constitutional amendment to end the debate forever. How that might be constructed and how general it might be is anyone’s guess, but with the political and economic forces that would likely be aligned in favor of saving Obamacare at this late date, it might just zoom through. I still think the first three options above are more likely.
What is not likely is that Washington would allow a Court decision against the mandate to stand. Too much would have been invested to allow Americans to walk away from their futures as compulsorily-insured drones.
So, there you have it, my friends. It’s not just unfortunate that a bill containing an unconstitutional mandate for all of us to spend our money in undesirable ways is winding its way toward passage in Congress. This is a legislative disaster on a scale only seen in earlier attempts at creating bloated entitlements without the political will to financially support them (Social Security; Medicare; other nations’ public health care bureaucracies). It will poison our constitution, our health care system, or both. Regardless, it will forever alter Americans’ relationship with their government. It must be defeated.