Calvin Freiburger

How ObamaCare and Its Apologists Make a Mockery of the Constitution

Posted on December 17 2010 1:13 pm
Hailing from Fond du Lac, Wisconsin, Calvin Freiburger is a political science major at Hillsdale College. He also writes for the Hillsdale Forum and his personal website, Calvin Freiburger Online.

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As a victory for constitutional originalism and a major blow to Barack Obama’s agenda, Judge Henry Hudson’s ruling against ObamaCare’s individual mandate has many conservatives cheering. But is it too soon to break out the champagne glasses? UC Boulder law professor Paul Campos thinks so. At the Daily Beast, he says that the Left may yet have the last laugh:

Judge Hudson’s decision, by ruling the individual mandate unconstitutional but leaving the rest of the Affordable Care Act intact, would, if it were to stand up on appeal, essentially be a death sentence for the private medical insurance industry in America.

After all, under the remaining provisions of the ACA, insurance companies would still be legally required to enroll applicants despite whatever pre-existing conditions the applicants might have—but they would no longer benefit from the crucial legislative quid pro quo that anyone who did not purchase insurance would be subject to a penalty in the form of a tax.

Perhaps (though it’s unclear how big the difference will be, since many will buy health insurance regardless of whether the law says they must). But that’s the thing about conservatives: we don’t assume that the courts will resolve all our political goals for us. Instead, we’re holding our lawmakers’ feet to the fire to see ObamaCare repealed legislatively. Likewise, if the individual mandate is unconstitutional, it’s unconstitutional. If an act of Congress can’t operate without a provision the Constitution doesn’t allow, that’s an argument against the act, not for the provision.

Of course it’s always possible that the Supreme Court would strike down the ACA as a whole. But given that even many of the biggest opponents of the law concede that its other provisions are constitutional, this seems extremely unlikely.

“Many” ObamaCare critics concede the constitutionality of the rest of the law? Name one. Even without the mandate, government-run healthcare still falls beyond the “few and defined” powers granted to Congress under Article II, Section 8 of the Constitution.  If ObamaCare’s general constitutionality is that clear, one would imagine that Democrats like Rep. Pete Stark (“the federal government, yes, can do most anything in this country”), Rep. John Conyers (“the good and welfare clause”), and Rep. Nancy Pelosi (“are you serious?”) could come up with more substantive explanations.

Practical predictions aside, the real story here is the glimpse of the legal philosophy Campos imparts to his students:

As a law professor, I’m expected (at least by my students) to declare whether Judge Hudson’s ruling is a correct interpretation of the Constitution’s commerce clause. The answer to that question is fairly simple: The decision is obviously correct if one interprets the commerce clause as Justices Scalia and Thomas do, and just as obviously incorrect if one interprets the commerce clause as Justices Ginsburg and Breyer do. These various interpretations have plenty of Supreme Court precedents to support them.

Of course this is a somewhat unsatisfactory answer, since what students want is not merely a prediction of how particular judges will decide an issue, but whether their particular decisions are correct “as a matter of law.” But in the end that question is quite meaningless: as both a practical and theoretical matter, at this stage in American legal history, the meaning of the Commerce Clause in particular, and the Constitution in general, is simply identical to the beliefs authoritative legal actors, such as Supreme Court justices, hold about that meaning.

This is a deeply unsatisfactory conclusion for those who wish to separate law from politics. (Its only virtue may be that it happens to be true).

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