In opposing Obamacare, we were serious the whole time
Protestors hold signs during an anti-health care reform rally August 14, 2009 in San Francisco, California. (Getty Images)
April 2nd, 2012
06:00 AM ET

In opposing Obamacare, we were serious the whole time

Editor’s Note: Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.  He has been heavily involved in the litigation regarding the Affordable Care Act, including having filed briefs on each of the four issues argued before the Supreme Court last week. 

By Ilya Shapiro - Special to CNN

“Can you create commerce in order to regulate it?”  With those words, Justice Anthony Kennedy sent the legal establishment reeling.

Was the Supreme Court really taking seriously the preposterous claims of the Tea Party-inspired hacks who were suing the federal government?  Was there really a chance that five justices, acting as would-be partisan hacks themselves, would throw out President Obama’s signature achievement?  Could Obamacare, which name everyone is now allowed to use because the administration itself has adopted it, really fall on some technicality about mandating economic activity rather than regulating it when it occurs?

In a word, yes.

Those of us who have been challenging the constitutionality of the individual health insurance mandate have been serious the whole time.  We thought we had put to rest the slurs about our cases being frivolous or political sour grapes when multiple federal judges denied the government’s motions to dismiss them.  Or when those same judges struck down the individual mandate.  Or when an appellate court, including a judge appointed by President Clinton, affirmed one of those rulings.

When 26 states (and two more in separate lawsuits) argue that the constitutional power to regulate interstate commerce - which the Court has interpreted to include the regulation of local economic activity that has a substantial effect on interstate commerce - does not give the federal government the power to force people to buy stuff, maybe there’s a legitimate point of debate.

Is it not valid to ask where federal power ends, as it must under the Constitution’s grant of enumerated and therefore limited powers?  What legal principle can courts apply to sanction economic mandates with respect to healthcare but not in other areas?

At the very least, when the Supreme Court granted an historic six hours of oral argument over three days - akin to Brown v. Board of Education or Roe v. Wade - surely the government’s supporters in the media and academy recognized that there was something to what we were saying.

Yet on the eve of the arguments, nationally renowned commentators like Linda Greenhouse and Dahlia Lithwick breezily predicted an easy victory for the government.  And 85% of academics and journalists polled by the American Bar Association said the law would be upheld. (Never mind the question of why we need proof that elite liberals overwhelmingly support the elite liberal view.)

After all, holding otherwise would take us back to the dark times when children could work in stores and the government couldn’t tell farmers how to go about their business.  We all know that only Justice Clarence Thomas would endorse those kinds of hunger games.

And so, despite the plaintiffs’ methodical progress and impressive lawyering - led by Paul Clement, possibly the nation’s best advocate - the punditocracy still managed to be caught off-guard when four justices expressed skepticism about the government’s position.  (Thomas was characteristically silent but can indeed be expected to support the structural limits on federal power.)

CNN’s own Jeffrey Toobin called it a “train wreck” for the administration, a reaction emblematic of the apoplexy with which the chattering classes reacted to last week’s hearings.  There had to be some explanation - beyond the obviously implausible idea that the challengers’ claims had any merit - and indeed two narratives emerged: (1) the government’s lawyer, Solicitor General Donald Verrilli, turned in a horrible performance, and (2) the justices were playing politics.

Neither of these excuses is convincing.  While it’s true that Verrilli wasn’t at his best - the experienced super-lawyer seemed to strain under a decidedly non-frivolous weight - he ably conveyed the carefully crafted legal positions that the government has advanced all along.

And while it’s also true that all the anti-Obamacare votes will come from justices appointed by Republican presidents, that doesn’t mean those justices are acting from partisan motives (any more than the pro-Obamacare justices are).  Indeed, unlike any previous “controversial” case, here 72% of the American people - including 56% of Democrats and 54% of those who think the law is a good thing - think the individual mandate is unconstitutional.

No, the reason that the government had a bad week is that its position is weak.  It has become abundantly clear that the reason that the solicitor general failed to articulate a principled limit to his theory of federal power - despite knowing that this would be the primary question he would face - is that there isn’t one.

No matter how much Yale’s Akhil Amar and Northwestern’s Andrew Koppelman protest, we must recognize the validity of an interpretive theory that gives judges the power to enforce the Constitution’s structure.  Features such as federalism and the separation of powers are there not as some abstract exercise in applied political theory but to protect individual liberty.  Before we even get to the Bill of Rights, which was a hotly debated afterthought, or the political checks on power, we have a constitutional design that denies the federal government the sort of plenary “police” power that states enjoy.

That’s why the infamous “broccoli hypothetical” is so telling: Economists say that diet and exercise have a greater effect on taxpayer spending on healthcare than rates of ownership of insurance, so if anything healthy-food and gym-membership mandates have greater constitutional warrant than what we’re dealing with now.

By the same token, Congress’s ability to concoct lots of well-intentioned national reform schemes doesn’t give it unfettered means to pursue those noble ends.  It is a theory that would allow such unchecked federal power every time Congress acts under a self-declared “national problem” that cannot survive serious constitutional scrutiny.

Returning to Justice Kennedy, “here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases, and that changes the relationship of the Federal Government to the individual in a very fundamental way.”

The views expressed in this article are solely those of Ilya Shapiro.

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Topics: 2012 Election • Health • Law

soundoff (140 Responses)
  1. reelman1946


    Why should a bill that

    socialized medicine (worldwide failure we all should know),

    required locking out the opposing Party to pass it,

    blocked voters from viewing it,

    added over 100 unelected boards and panels,

    heaped on new taxes or fees,

    forced citizens to buy it or be fined,

    was lied about as far as its cost and rationing intentions…

    have ANY acceptance by those it forced itself upon?

    BTW, its such a wonderful bill that federal workers, including the royal congress are EXEMPT! EXPLAIN THAT!!!!!

    I am convinced that liberalism is a religion in which the lie
    that a secular socialist utopia is best must be protected at all costs by its arrogant apostles…
    using distractions, lies and smears.

    Ouch! Cost Estimate for 'Obamacare' Up by $111B
    (yet another lie)

    April 2, 2012 at 10:13 pm | Reply
    • Patrick

      Yet another liar!

      April 3, 2012 at 6:25 am | Reply
      • Sergio

        Well, our (U.S.A.) welfare stseym was created to help the poorest of the poor. It was done so with the optimistic idea of helping those in most need. Unfortunately, the stseym has been over-taxed and abused. Let's hope that doesn't happen with universal healthcare, as well.

        April 23, 2012 at 9:41 pm |
  2. PortlandJoe

    I think the government is not really interested in healthcare at all, it's just a political tool, power for whichever party is in power. If they were serious, they would do something about the corruption and fraud that is costing the system billions. I find it hard to swallow that a government who can't even come up with a budget, thinks they can manage an entire healthcare system properly. When it collapses and when (not if) the government is bankrupt, we will all have to take the bitter pill we begged for and just swallow it in silence: That's IF it survives one of our fine checks and balances-The Supreme Court.

    April 2, 2012 at 11:40 pm | Reply
  3. geezer117

    Verilli based the government's argument on the fact that when a citizen who can't pay is treated "free", the cost is borne by society. True enough. But the government itself created that condition with its own laws to that effect.

    If that condition justifies the expansion of federal power to new heights, then the government has achieved an expansion of its powers through the expedient of its own prior enabling laws. If that recipe stands, there is no limit to its future use, and no limit on the power the government can attain through its use.

    April 2, 2012 at 11:46 pm | Reply
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  5. h2oclerk

    Reject it. Shred it. Urinate on it, and shovel it into the compost heap of other vile, vulgar, disgraceful attempts to violate individual liberty.

    That's about the kindest thing I can say. People need to recognize that the right to liberty is far, far more important than any popular social want or wish. We can fix healthcare in any number of other ways without abrogating our freedom. Once you sanction the abrogating of a principle, you lose all protection that principle affords – you lose everything. Then something truly minor in comparison, like healthcare, fades in importance.

    April 3, 2012 at 12:01 pm | Reply
    • Diana

      What freedom are you talking about?? The freedom to die for lack of healthcare in the wealthiest nation on earth? I don't understand your tea party mentality at all; God help this country if it prevails

      April 5, 2012 at 3:17 pm | Reply
    • Diana

      What freedom are you talking about?? The freedom to die for lack of healthcare in the wealthiest nation on earth?
      I don't understand your tea party mentality at all; God help this country if it prevails

      April 5, 2012 at 3:29 pm | Reply
      • Patrick

        First you say that America is broke, then you say America is the wealthiest nation on earth.
        What are you going to say next?
        Your visions are like a cartoon.

        April 5, 2012 at 7:44 pm |
  6. lsjogren

    Not sure why lefties are so opposed to power being vested in the states. Most state and local politicians are bought and paid for by the public employee unions.

    April 3, 2012 at 12:35 pm | Reply
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  11. Timmy Suckle

    I kissed my way up to VP at a health insurance company. Now I take over $500,000 of your health care dollars for NO VALUE ADDED to your health care. And that’s just me. Now think about how many other VPs, Directors, Managers, etc. are at my company alone. Now multiply that by thousands of others at hundreds of other health insurance companies. From 10 to 25% of your health care dollars go towards administration that adds NO VALUE to your health care. But my company’s PAC dollars will continue to fool you little people into thinking that a single payer system will be bad. Little people like you are so easy to fool. Little people also don’t realize that a single payer system is the ONLY system that would allow little people (as an entire country) to negotiate better health care prices. Little people don’t realize that the Medical Cartels already know that. And that is the reason why the Medical Cartels spend so much PAC money from the hospitals and doctors lobbying against a single payer system. Some little people say that a single payer system would cost you little people more. But if that were true, then wouldn’t the hospitals and doctors WANT that extra money? Yes they would. So why do the Medical Cartels lobby against a single payer system? It’s because the Medical Cartels know it would allow little people to negotiate better health care prices. And that’s what the Medical Cartels are afraid of. Period.
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    Pretty soon the only people that will be able to afford health care is us big wigs. And that’s the way it should be. We don’t want you little people using up the resources when we need them. And once again, I thank you little people for capping my SS tax at the $106,800 level. Now I only pay 1.3% SS tax and you little people pay 6.2%. Also, thank you for extending my tax breaks. I’m using the extra money on my vacation houses.

    April 10, 2012 at 10:52 am | Reply
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    April 29, 2012 at 3:29 pm | Reply
  16. gg

    only people with the means to pay should have health care–you run out of money or your boss says sorry your costing me to much too bad ,tax payers should not have to pay for anybodys emergency visits-no money no care

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