As arguments at the Supreme Court flare about Obamacare, the media’s propaganda front is out in full-force over at Time. In an article declaring that Obamacare should be upheld by the Court 9-0, Yale law professor Adam Cohen dishonestly represents the case against the law:
[Obamacare's individual] mandate is being challenged by 26 states, which argue that Congress does not have the power to force people to buy insurance. The Commerce Clause authorizes Congress to regulate interstate commerce “among the several states.” But critics argue that the mandate is a local matter – not interstate commerce at all. Minority Leader Mitch McConnell told Bloomberg News that if the Supreme Court upholds the health care law it would render the Commerce Clause “a relic of ancient times.”
There is a lot of legal authority saying that the critics are wrong – and that the health care law should be upheld. The Supreme Court has long said that Congress’s power under the Commerce Clause is extremely broad. In a landmark 1942 case, it upheld a New Deal law dictating how much wheat farmers could grow without paying a penalty. Growing wheat may feel like a local activity, but it affects the whole national economy. In 2005, the Supreme Court used the same logic to uphold a federal law against medical marijuana. Like wheat and marijuana, health insurance has a far-reaching economic impact– and Congress has the power to regulate it.
Cohen’s admittedly deft sleight-of-hand trick is to attempt to shift the focus of the debate from whether Congress has the power to punish inaction to whether health-care is a national issue — and thus supposedly an area in which Congress can legitimately involve itself as it pleases. Precedent is obviously very clear on the latter (health care is, of course, a national issue); the former is unprecedented. As much as I disagree with the Court’s rulings in the instances of both wheat and marijuana, both of which affirmed very broad Congressional power, neither case authorized Congress to punish individuals for inactivity. Needless to say, this debate is a little more complicated than whether the issue is “a local matter.”
The Commerce Clause was meant to normalize trade relations amongst individual states. Over the years, the rationalizations and abstract “theories” of well-schooled judges and professors have eroded that meaning in pursuit of pet progressive causes. After all, why let the Constitution get in the way of a good cause?
But one can acknowledge Congress’ acknowledged power to involve itself in health care without granting it the power to punish the mere act of existing: in this case, a person who literally sits around doing nothing would become a criminal, by virtue of his failure to comply with the mandate to purchase a product. No longer would one even have to do anything to violate Congress’ orders. Mitch McConnell’s point is far more serious than Cohen makes it out to be: what, precisely, are the limitations on Congress’ powers under the Commerce Clause, if this law is upheld? Are there any at all?
The fight over Obamacare is the fight over some of the last remnants of acknowledged Constitutional restraint on Congress’ power to regulate economics. Do we still have hope as a republic, or are we destined to descend into oligarchy? We look now to the Court to protect one of our remaining individual rights. We will learn soon whether checks and balances still exist, or whether each branch exists as little more than a rubber-stamp for the will of the others.