Obamacare: Obscuring the Federalist Argument

Prof. Ronald Dworkin's article in the New York Review of Books  on the "mandate", Obamacare's most controversial provision, makes for a very interesting read. The author purports to present the actual policy argument, on which the Supreme Court should uphold the Affordable Care Act's constitutionality. He seems to think that the contentious issue, whether the federal Congress has, among its enumerated powers (as written down in Art. I section 8 of the U.S. Constitution); whether, in particular, the mandate, i.e. the requirement that most individuals buy their own health insurance on a penalty of a fine, falls within the scope of the power of the Congress to "... regulate commerce ... among the several states ...", is rather trifle.

However, the issue is not whether the mandate is a good idea policy-wise. Prof. Dworkin seems to ignore the fact that 26 states are among the plaintiffs in the constitutional challenge against the mandate. 26 states wish for the Supreme Court to rule that it is up to them, not the federal government, to enact such sweeping legislation.

I find Prof. Dworkin's policy arguments very convincing, although equally valid counter-arguments could be put forward. However, this is a policy discussion that should be taking place on the state level. Although the Supreme Court should respect the federal legislature's role and afford all legislation passed at least a presumption of constitutionality, based on the argument that Congress is elected, while the Supreme Court is not, in actuality the prominence of the federal government is in fact a step away from democratic self-government, if one understands that self-government entails that decisions are made as close to those affected as possible. People do vote, of course, for the federal Congress. Yet, it is the state legislative bodies that are much more reflective of local opinion than federal government. This federal over-extension led to the imposition of the will of a majority in some states over majorities in other states. People are disinclined to engage in debate over the merits of a policy proposal among themselves, since their opinion might become irrelevant within the context of the federal legislative bodies, in effect letting others make their decisions for them.

The only thing that's worse than federal over-extension at the legislative level is federal judicial activism. How much people value their privacy nowadays is very understandable, yet no such right exists within the federal Constitution or its Amendments. However, the Supreme Court, with a reasoning that was similar to Prof. Dworkin's in that it appealed to the policy aspect of the cases before it, found that such a right existed within the "penumbra" of a number of Bill of Rights provisions, precluding the state from prohibiting the use of condoms between married couples. That finding by the Court meant that the citizens of Connecticut would no longer have to debate the silliness of their legislation; they could rely on someone else, in this case the Supreme Court, to take care of them. The women's movement lost a lot of its dynamic when the right of privacy was extended to include a right to abortion on demand by the Court, not by the voters. And although most people would not have, nowadays, problems with what consenting adults do in their bed, a sense of civic responsibility was lost, when the Supreme Court declared that laws penalizing "sodomy" are unconstitutional. If I were a Texas citizen, I'd be hoping to be able to overturn such law by ballot.

The federalist argument, then, should be taken seriously. Political discourse is fundamental for the functioning of a democracy and is displayed at its best on a local level; it should not be made moot by extension of the federal legislative or judicial powers.

Some Thoughts on Virginia v. Sebelius

The District Court for the Eastern District of Virginia held that the Minimum Essential Coverage Provision of the Health Care Act is unconstitutional, insofar it exceeds the enumerated powers of Congress under Art. 1 Section 8 of the U.S. Constitution. As is the case often, the main question before the Court was whether the Minimum Essential Coverage Provision (it provides that individuals who do not purchase health insurance shall be fined) was within the scope of the interstate commerce clause or the necessary and proper clause of the Constitution. The Court found that the provision exceeded these clauses and the taxation power of the federal government.

Although one could question the wisdom of many aspects of the Health Care Act, the decision in itself seems to ignore the law set by Gonzales v. Raich (2005); the latter was the decision that held (as did Wickard v. Filmore in 1942) that even private activities may be regulated, falling into the scope of the interstate commerce clause, if their aggregated effect somehow affects (albeit even indirectly) interstate commerce. Moreover, the federal government put forward an argument, taken from Perez v. United States (1971), that specific actions, even if they may not affect interstate commerce by themselves, can still be regulated, if they fall in a class of activities that may be constitutionally regulated.

These arguments seem very sound and stand on some 60 years of precedent, although there is much to be criticized within such precedent. It is very unfortunate that Gonzales reversed the trend that had been seeming to emerge from the United States v. Lopez (1995) and United States v. Morrison (2000) decisions; in those two cases the Supreme Court held that not every activity can be regulated purportedly on interstate commerce grounds, especially if no connection to commerce whatsoever exists. The Court invalidated a federal statue that prohibited the carrying of weapons close to schools in Lopez and the Violence Against Women Act in Morrison, as neither of those pieces of legislation had anything to do with commerce. 

In Gonzales, however, it held that the federal government had the power to prohibit the cultivation of marijuana in one's home - although there had existed a California statute allowing the cultivation of marijuana for personal and medical use, a federal law with the opposite content was let stand. The Court's reasoning was that, whenever someone consumes the marijuana they have produced, they fail to buy the same amount on the market (which is an illegal interstate market), thus affecting interstate commerce.

Sadly, this reasoning should apply to the Minimum Essential Coverage Provision. Instead, the District Court held that refusing to purchase medical insurance is not even an activity at all and thus it could not be regulated under the interstate commerce clause. This decision is almost certain to be reversed - unless the Supreme Court overrules Gonzales and forces Congress to respect the limits of the enumerated powers.