Back in 2009, when the health care reform debate began, House Republicans raised concerns about the constitutionality of a massive government takeover of our health care system. The public echoed many of these concerns. Yet, despite the opposition of a significant portion of the American people, the Patient Protection and Affordable Care Act, more commonly known as Obamacare, passed both the Democrat controlled House and Senate and was signed into law.
Almost immediately, legal challenges were initiated against the law. Various judges, including Judge Roger Vinson of the U.S. District Court for the Northern District of Florida located in Pensacola, have ruled the law to be unconstitutional. Other judges, however, have ruled the law to be constitutional. So, last week the Supreme Court held three days of hearings on Obamacare to determine the constitutionality of the law.
Monday's hearings centered on a very technical legal challenge, and from the very beginning the irrational nature of the Administration's argument in favor of Obamacare began to emerge. Some had argued that the Supreme Court did not yet have the authority to rule on Obamacare because the penalty for failing to purchase health care insurance was a tax. Under the Anti-Injunction Act of 1867, the Supreme Court cannot rule on a legal challenge to any tax until that tax has been fully implemented.
This argument seemed like nothing more than an attempt to stop the Supreme Court from ruling on this pressing matter. After initially embracing the position that the penalty was a tax, the Administration reversed course and the Solicitor General, representing the Administration, argued before the Supreme Court that the penalty for failing to purchase health care insurance was not a tax. This position was not just a flip-flop from the Administration's earlier stand, it was actually contrary to the very argument that the Administration would advance in Tuesday's arguments. Justice Samuel Alito immediately recognized this contradiction and directly pointed out that "today you are arguing that the penalty is not a tax. Tomorrow you will be back and you are going to be arguing that the penalty is a tax."
These technical legal challenges, while certainly important, did not deal with the real heart of the matter: whether or not the individual mandate is constitutional or unconstitutional, which the Supreme Court addressed on Tuesday. I, and many of my colleagues, have long argued that the federal government's attempt to force the American people to buy a specific product, in this case health care insurance, or pay a fine is an unconstitutional act that tramples on the limited powers of the federal government as enumerated in the Constitution.
While Article I, Section 8 of the Constitution, known as the Commerce Clause, clearly gives Congress the power to regulate interstate commerce, it does not give Congress the power to create commerce or compel individuals to engage in a specific type of commercial activity. Granting the federal government the power to create commerce would be a fundamental change in the relationship between the government and the American citizens that would contradict the principles of the Constitution.
Justice Anthony Kennedy directly asked the Solicitor General if the government can create commerce in order to regulate it. The Solicitor General failed to respond to this crucial question. This failure was particularly important. If the federal government can force individuals to buy one specific product, what is to stop them from intruding into every single aspect of our lives? The bottom line is if the individual mandate is upheld, there will be virtually no limits on the intrusive powers of the government. This kind of government intrusion would fly in the face of the tenets of liberty and freedom upon which our great Nation was founded.
The final arguments on Wednesday centered on the Medicaid expansion contained in Obamacare, as well as the question of what to do with the rest of the bill if, and hopefully when, the individual mandate is ruled to be unconstitutional. These two questions are intertwined with the real root of the issue: the individual mandate. The fact of the matter is that the individual mandate is at the very heart of Obamacare. It is the core provision upon which the entire law must stand or fall. The individual mandate is tied to the health exchanges, which is tied to employer mandates, which is tied to tax credits, which is tied to Medicaid. Everything is tied together in a ball that is strung together with the unconstitutional thread of the individual mandate.
The Supreme Court hearings on Obamacare are now over; however, the ruling will not come until this summer. While I wish that I could wake up tomorrow to news of the Supreme Court's decision to repeal Obamacare, we will simply have to wait. Nonetheless, last week's historic case clearly demonstrated the troubling problems that arise when Congress strays from the Constitutional framework that the Founding Fathers established.