Saturday, March 24, 2012

ObamaCare's Constitutionality and Federalism

Monday the Supreme Court begins three days of listening to opposing arguments about the constitutionality of what's commonly referred to as ObamaCare.

We'll also spend the next few days discussing the matter and what the decision may portend for the future of our unique American federalist system of government.

Although most pundits will declare the Court's ultimate decision in this case to be either the end of the world or its bright new beginning, we'll make a serious effort herein to keep both feet firmly planted on the ground and view all this in its proper perspective.

When these 'once in a lifetime' events occur every so often, it's appropriate to acknowledge an old aphorism: when things turn out great (meaning the way we want them to, of course), things really aren't all that great; and when things turn out bad (our team loses), things really aren't all bad either.

Thus, whatever the Supreme Court decides with respect to ObamaCare, the sun won't disappear forever and neither will our many problems go away overnight. So with that simple truism in mind, here goes with the guesstimating.

My bet is the Court will decide by a 5 to 4 decision to either uphold or strike down the new law. Although I have no strong conviction about what looks like a very close call, if I had to bet, I'd bet for its consitutionality being affirmed. That said, I certainly won't be surprised if it's a 5 to 4 decision striking down the law. What would surprise me is a unanimous or near unanimous decision either way.

Using common sense, which admittedly isn't always employed these days, the law should be ruled unconstitutional as written. Congress should have used its taxing power instead. Of course, Congress and the President reasoned that We the People wouldn't have approved that taxation approach, so they instead pulled a fast one on us and used the Commerce Clause in justifying their actions. For that reason alone, the law should be rejected.

That said, The Court is always reluctant to overrule the legislature (separation of powers), and this time will be no exception. They may say it's a political question, and that We the People can get it changed at the ballot box or by pressuring our elected representatives if we so desire, and therefore don't need the help of the Supreme Court. Still, I hope the nine members of the Court, or at least five of them, gut up and do the right thing on their own initiative. We'll see.

The Commerce Clause (Article I, Section 8), upon which ObamaCare is justified, is all about interstate commerce, and much of the new health law has nothing to do with relations between the several states. However, it is true that the Commerce Clause has been used over the years to legitimize many things at the national level which on their face didn't involve interstate commerce.

In any event, one fundamental question before the Court concerns the 'individual mandate' and whether Congress can require a person to purchase health insurance pursuant to its powers enumerated in the Commerce Clause. Had it so chosen, Congress could have avoided that issue entirely and used its taxing power instead of the Commerce Clause. But it didn't do that. Why not?

To repeat, Congress could have chosen to justify its actions by using its taxing authority but didn't. That it chose not to do so is clear evidence, at least to me, that it knew citizens wouldn't approve of a national health care law.

Therefore, the very idea of Federalism is at stake, as is the power of the national government. If you're interested, Federalist papers #45 and #46 by James Madison speak directly to the powers of the national and state governments as intended by the Founding Fathers. He saw the the state powers as greater than those of the national government and argued that acting in the best interests of the people was all that really mattered. My, how things have changed in just a short 224 years!

Romney's Health-Care Duck is a good read for an understanding of how federalism works best. Here's a sampling:

"The more conservatives have been forced to think about health care, the more they've understood the merits of state experimentation. Jim Stergios, executive director of the Pioneer Institute—a free-market think tank in Boston that has published a book on ObamaCare and RomneyCare titled "The Great Experiment: The States, the Feds, and Your Health Care"—argued in a recent conversation that the fundamental mistake of ObamaCare was in imposing a giant, untested law on an unwilling nation.

He contrasts this to the 1990s welfare reform, which came only after 20 years of state experimentation. By the time the federal law was passed, politicians on both sides of the aisle, he says, had come to a sort of "settlement" as to what generally worked. "The Great Experiment" argues that the GOP "alternative" to ObamaCare needs to be federal steps that give states the maximum flexibility to innovate and experiment with free-market health care.

Mr. Romney's health-care proposals embrace some of this, in particular his Paul Ryan-like plan to send Medicaid funds back the states via block grants. What he has yet to do is embrace Massachusetts as a lesson for what other states ought not to do.

This needn't be an exercise in humiliation. Mr. Romney can take credit for being a Republican willing to talk about health care when most of his party wouldn't. He can argue the mistakes Massachusetts made were one consequence of it being early to experiment. He can note, as the Pioneer Institute book does, that several programs he had intended to improve choice and competition, were instead hijacked by his Democratic successor, Deval Patrick, for the opposite purpose.

Mostly, Mr. Romney can argue he is better qualified than most to say what doesn't work. He can note that several of his vetoes in the bill that his legislature overrode—an employer mandate, expanded option benefits for Medicaid recipients—have been proven costly and counterproductive. He can say that, best intentions aside, his state is now living proof that individual mandates, health subsidies for the middle class, and government control over insurance plans, medical services, and prices (all hallmarks of ObamaCare) raise prices and squelch choice.

Mr. Romney has admitted that "our experiment wasn't perfect—some things worked, some things didn't, and some things I'd change." Having acknowledged as much, he may as well embrace his duck, and use it to his advantage. If Mr. Romney is looking for a breakthrough with voters, this is the place to start."

Another worthwhile read is Liberty and ObamaCare, especially if you want a good overview of the Commerce Clause, its background and how it's been interpreted by the Supreme Court throughout history. It highlights the importance of the case before the Court in this way:

"Few legal cases in the modern era are as consequential, or as defining, as the challenges to the Patient Protection and Affordable Care Act that the Supreme Court hears beginning Monday. The powers that the Obama Administration is claiming change the structure of the American government as it has existed for 225 years. Thus has the health-care law provoked an unprecedented and unnecessary constitutional showdown that endangers individual liberty.

It is a remarkable moment. The High Court has scheduled the longest oral arguments in nearly a half-century: five and a half hours, spread over three days. Yet Democrats, the liberal legal establishment and the press corps spent most of 2010 and 2011 deriding the government of limited and enumerated powers of Article I as a quaint artifact of the 18th century. Now even President Obama and his staff seem to grasp their constitutional gamble."

Summing Up

Federalism indicates that the scientific method, aka trial and error, is an inherent part of our nation's DNA.

Having the freedom through experimentation to discover what works and what doesn't encourages both states and individuals to try various approaches and then adopt the best practices.

Learning by doing is a powerful way of acquiring knowledge and continually improving.

We seem to have lost that simple idea somewhere along the road to modernity.

Another thing we've lost is the humility within leadership to admit mistakes, learn from them, make adjustments and then try again.

And politics has become a game rather than a public service.

The vote on ObamaCare's constitutionality will likely be 5 to 4 one way or the other. That's not what's most important.

What is most important is what we do about our self governing society and how it works.

Whatever the ruling, health care has to become affordable.

And as a nation, we must accept the simple fact that we need to live within our means while providing opportunity for all.

Federalism was a wonderful gift from our Founding Fathers.

The interests and freedoms of We the People must always come first.

American federalism is an idea that has no equal. We should embrace it again.

Let's hope our Supreme Court, political leadership and We the People decide real soon to do just that.

Thanks. Bob.

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