The American Spectator : Without Recourse

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Without Recourse

By Stacy Cline on 3.22.10 @ 6:07AM

Don't expect the Supreme Court to ride to the rescue, not even regarding the "individual mandate." It gave up long ago trying to keep big government in check.

Last night's passage of the greatest expansion of the federal government since the Great Society is a sad day for our country, not only because it may bankrupt our future, but also because we have no recourse to the Constitution. Our Constitution was elegantly designed to protect individuals from too much concentration of power in any one source, but the Supreme Court has evolved into a body that has protected and even facilitated the modern regulatory state at the expense of our founding principles. The optimism of state attorneys general and others who hope to challenge the constitutionality of this legislation is admirable, but such challenges are not likely to be successful.

A challenge to the "individual mandate" is perhaps the best legal option available. The health care bill requires certain individuals to purchase health insurance on a government run exchange, a requirement many legal scholars have argued is an unconstitutional expansion of federal power. It not only imposes a duty on individuals to purchase insurance, but it heavily regulates the available options, requiring individuals to engage in economic activity to subsidize an industry on which Congress has conferred special benefits. Imagine the outrage if, in order to promote general economic stability, individuals were required to buy American cars or purchase stock in one of the government's preferred financial institutions.

Despite this patent overreach by Congress, the Supreme Court's flawed jurisprudence on this issue probably permits it. The government will argue that it has the authority to impose the individual mandate under the Commerce Clause of the Constitution, which permits Congress "to regulate Commerce … among the several States." Supreme Court precedent has interpreted the Commerce Clause to permit Congress to regulate and prohibit all sorts of economic activities that in the aggregate substantially affect interstate commerce.

In the 1942 case Wickard v. Filburn, the Supreme Court authorized the broadest federal power to date, concluding that a farmer growing wheat for his own use was not exempt from federal caps on wheat production that had been established by the government to artificially drive up the price of wheat. The fact that the farmer was growing wheat for his own use meant he would not purchase it on the open market. The Court held that his failure to purchase wheat in the market, taken in the aggregate, would have a substantial effect on interstate commerce. Thus, the Court laid the groundwork for Congress to regulate nearly any activity with a weak connection to economic activity, and for years Congress did not even bother to establish the basis for its Commerce Clause authority.

The Supreme Court had the opportunity to overturn this precedent in Raich v. Gonzales, the 2005 medical marijuana case, but balked. In that case, the Court decided that it was within Congress's Commerce Clause power to prohibit individuals from growing medicinal marijuana for their personal use. In reaching this conclusion, the Court affirmed that activity that does not fall under the Commerce Clause alone can be reached as part of a broader scheme to regulate interstate commerce. This case was blow to those of us who thought the opinions in Lopez and Morrison signaled that the Court was willing to scale federal power back to something closer to the Constitution's original intent.

The individual mandate can be distinguished from these cases, as it compels economic activity where Wickard and Raich did not. But what Raich showed is that the Supreme Court does not have the will to limit federal power when Congress has made the most modest of showings that the activity has economic effects. The individual mandate is likely to be upheld as part of a legislative scheme that regulates economic activity, and the insult to our constitutional government, designed to limit the federal government to enumerated powers, will have received judicial sanction.

Some legal scholars have argued that the Commerce Clause is not even necessary to justify the individual mandate, because Congress has the authority to impose the mandate as a tax under the General Welfare Clause of the Constitution, which permits the government to "lay and collect taxes… [to] provide for the general welfare of the United States." Chapter 48 of the bill refers to the mandate as a "penalty" if "minimum essential coverage" is not maintained for more than a month during the taxable year. This section of the bill amends the Internal Revenue Code, and the provisions are in part administered by the Internal Revenue Service.

Congress has a long history of imposing policy through the Internal Revenue Code -- creating tax credits or penalties where it wishes to create indirect incentives for behavior. The last time a penalty was deemed an unconstituional tax by the Supreme Court was 1922, and since then the Court has permitted taxes on gambling, tobacco, alcohol and a number of other disfavored activities. Should the Commerce Clause prove to be an indefensible basis of authority, the General Welfare Clause would likely be another source of authority. The current Supreme Court, which time and again demonstrates its willingness to uphold the modern regulatory state to legal challenge, is unlikely to delve into a nearly century old line of cases limiting Congress's ability to impose penalties as taxes.

The other arguments that have been considered as legal challenges to the bill are not likely to fare well either. Senator Hatch and several legal scholars have argued that the insurance exchange is a violation of state sovereignty, since it requires states to either establish the exchange as per HHS guidelines, or allow HHS to establish the exchanges within the states. These arguments rely on Printz v. United States, which held that the federal government may not command State officers to administer a federal regulatory program. If the bill forced states to establish the exchange, it likely would amount to a commandeering of state government. But the legislation gives states a choice to allow HHS to establish the exchange. The program usurps state authority to set the parameters for what requirements insurers in-state must meet. But if the regulations do not in fact require state officials to act at the direction of the federal government to address particular problems or administer federal programs, current Supreme Court jurisprudence is unwilling to protect the states' sovereignty.

Likewise, the bill expands Medicaid coverage to include individuals at 133% of the poverty level, nearly 15 million additional people. This is estimated to cost states tens of millions of dollars per year. State governors face imposing 10% or higher tax increases, or risk bankruptcy. Such an unfunded mandate would seem to be a clear violation of state sovereignty principles, but the Supreme Court has held that Congress may attach conditions on the receipt of federal funds. In this case, states receive federal Medicaid funds, and it is within the federal government's power to set conditions, such as who qualifies for Medicaid.

Federalism was meant to structurally secure individual liberty through the diffusion of government power. The reality of our current Supreme Court jurisprudence is that federalism is rarely protected, and only within narrow confines. The only check left on federal power is the government's own sense of self-restraint, meaning elections take on even greater importance.

topics:
Federalism, Congressional Overreach, Commerce Clause

About the Author

Stacy Cline is an associate in the Political Law practice group at Caplin & Drysdale. She previously served as Deputy Counsel on Rudy Giuliani's presidential campaign.

Letter to the Editor View all comments (56) | Leave a comment

Shamus| 3.22.10 @ 7:32AM

The Court is useless. It was pretty much neutered during the court packing incident under FDR. Since then it has been a rubber stamp for the leftists who have controlled our government.

Brian Mc| 3.22.10 @ 7:49AM

Remove the 16th and 17th Amendments. This would be a start in gaining back our liberties and muzzling the Federal monster that has become a massive cloud over this once proud land.

Becky| 3.22.10 @ 8:24AM

The court is not the only redress the founders had the forsight to check federal growth. The several states can call for a constitutional convention. almost 2/3 are now calling for a constitutional lawsuit.

I would argue that Sotomyer can be portrayed as a states rights supporter, in that she has ruled in the past that states can chose to ignore the second amendment. If a state rejects federal funding, it can reject this mandate.

It is not the court, nor the feds that have the states in a mess, but the states themselves.

It is possible that some states will have to cut off the spigot from the feds before they can reclain rights to mind their own business. The states that cut Medicaid should see a reduction in residents that are liabilities, which is an ultimate goal of universal care: using limited resources on the deserving.

Mark| 3.22.10 @ 9:17AM

I totally agree that this is the way to fight it. That is why it is not only important to vote for conservatives at the Federal level, but to make sure that they are in control at the state level. Thirty seven states already are in the process of creating bills to exempt themselves from this "power grab", we as the voters have to make sure that this November that we remove the "crooks" from Washington, but we most also make sure that each state's legislature is able to vote for a constitutional repeal of this unconstitutional act.

Maggie| 3.23.10 @ 2:59PM

"It is possible that some states will have to cut off the spigot from the feds." Ain't gonna happen Becky. The Feds can AND WILL cut off funding to the states and if you believe the states will allow that to happen, in this economy, with all the pork projects they have, you're very mistaken.

Val| 3.22.10 @ 8:32AM

A part of this legislation in the "fix" bill was the total takeover of the student loan industry. The govt. now requires all student loans to be "purchased" from the govt. They soon will take over all mortgages. They are well on their way to controlling all kinds of products that must be purchased from the government.

Joey Doughnuts| 3.23.10 @ 8:43AM

Val you don't know what you are talking about. Read the bill first before you spout off your "wisdom."

Cris Worth| 3.22.10 @ 10:35AM

Back in the 70's the federal courts gave us two beauts busing and abortion on demand. 5 of the 7 supreme justices who voted for abortion on demand were GOP appointees...go figure.

Henry| 3.22.10 @ 10:46AM

At the town hall last April 15th one individual had a sign with several quotes from the Declaration of Independence. I commented to him that he had missed the most important one, i.e. "When, in the course of human events..."
More to the point, I doubt that congress will allow a constitutional convention to be called by the states, since there would be no preset agenda and all questions would be open. Such as requiring that congress be subject to any and all laws that apply to the rest of the citizenry.
To forestall a convention congress would be forced to agree to a constitutional amendment repealing Obamacare and enhancing the 10th amendment.
I do agree with Stacy that this bill will not be repealed in its entirety, and it will not be repealed in its entirety even if certain provisions are declared unconstitutional.

John Roberts| 3.22.10 @ 1:47PM

Article V: "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof"

The Congress cannot stop it if the states demand it.

Maggie| 3.23.10 @ 3:01PM

Please "John Roberts" don't be naive.

Thisson| 3.23.10 @ 2:10PM

Some animals are more equal than others...

Cris Worth| 3.22.10 @ 10:48AM

I remember while driving with Dad "Impeach Earl Warren" billboards. Dad told me in 1969 the greatest threat to our individual liberties comes from unhinged liberal federal judges. This article helps prove his point.

NeilBJ| 3.22.10 @ 12:24PM

The courts have ignored the fundamental concept of Constituitonal interpretation:

No part of the Constitution can be interpreted in a manner that results in the nullification of or otherwise renders meaningless another part of the Constitution.

The Constitution gets amended by fiat by a body of unelected lawyers who are ultimately not accountable to anyone.

George S| 3.22.10 @ 1:35PM

If Congress does indeed have the authority to mandate a tax for not carrying insurance, any tax has to be either uniform or apportioned among the states.

If the tax kicks in because of insurance status, it is a "capitation" - or a direct tax - and therefore has to be levied against the state based upon census or enumeration. The IRS would have no authority to go after the individual.

If the tax is an income tax - an indirect tax - it must be uniformly applied, i.e., without discriminating against those with or without insurance.

The clear wording of Article I Sections 3, 8 and 9 will be one of the best arguments to defeat the penalty for not carrying insurance.

Bunkerville| 3.22.10 @ 1:47PM

The best would be for the Docs to immediately stop taking Medicaid and Medicare. Force the government's hand. The Gov and Supremo's would require the Docs to take it? A bridge too far?

maire| 3.22.10 @ 2:03PM

If what Ms. Cline says is true, we are no longer a nation "of laws and not of men." We are a nation under the tyranny of a Congress that will continue to buy itself votes in perpetuity.

It means we have no recourse in law to protect the rights set forth in the first ten amendments to the Constitution, let alone any other aspect of limited federal government.

It means we are a banana republic.

So, the 38 or so states that are looking at doing "something" to save their citizens from this "thing" may need to call a ConCon after the courts have rendered themselves completely irrelevant (per Ms. Cline that is what they are prepared to do).

Maybe at this ConCon we can get an amendment overruling the interpretation of the commerce clause and clarifying the "enumerated powers" the founders hoped would protect our liberty.

Bunkerville - from what people are saying about the uselessness of our founding documents, the futility of our assertions of liberty and the irrelevance of our courts, there does not seem to be a "bridge too far."

Once their database is populated with all your intimate physical and medical details, and once the "enforcement" mechanisms are in place to make sure you get (or don't get) your particular medical procedures, check-ups, etc., they can and will control every aspect of your existence.

So, no, there are no "bridges too far." They will just recruit and train "nurses" and "health care provisioners" to come and give you your blue or red pill.

They don't need people with M.D.s after their name anymore.

Anthony| 3.22.10 @ 3:25PM

If the Federal Courts provide no remedy, then we take a chapter out of the Left's playbook. Civil Disobedience, '60s style.

Warrior| 3.22.10 @ 3:43PM

I hope you me 1760 and 1770's style.

Cal Mark| 3.22.10 @ 3:59PM

If the GOP ever gets into power again, and has any guts, they could apply what I call the "Marshall Solution": abolish all Federal courts below the Supreme Court and start over again.

When Chief Justice John Marshall usurped the right to determine constitutionality for the courts, Congress was so enraged that all the circuit courts were abolished, forcing the Justices to the onerous duties of "riding circuit" in the early 1800s.

This time around, it would be a form of pest control and regeneration.

Tripp| 3.22.10 @ 4:14PM

Consider the current make up of the court- theoretically, why wouldnt Alito, Scalia, Roberts, and Thomas grant "writ cert" via the rule of four in order to stave this madness? It's in their power, and this article makes it clear it would be legitimate textually to overturn obamacare.However, in the end, it's all up to Kennedy.

Oldefarte| 3.22.10 @ 4:50PM

I agree wholeheartedly with Stacy's conclusion of the inability of the law to reverse this legislation; but for more common/basic reasoning. The law is administered by LAWYERS who are LEGISLATORS and JUDGES and DEMOCRATS; and these lawyers will never permit the reversal of this legislation written, initiated and approved by their fellow LAWYERS. The only hope will come from the taxpayer-voters in November by defeating any/all Democrats and Republican congressmen who facilitated in any way, shape or form this piece of legislative excrement!!!!!

Jeff Perren| 3.22.10 @ 6:45PM

Ms. Cline,

Your position is reasonable, but Prof. Barnett disagrees, or it at least more hopeful, and not just on the basis of legal principles, but also a review of SCOTUS decisions that touch on similar cases both recent and historical.

Michael Tomlinson| 3.22.10 @ 7:17PM

This is the Robert's Court and there are 4 definitely sane justices on the bench. We can only hope the Ronald Reagan pick won't screw the Constitution hoping to win brownie points with the soon-to-be our of power Democrats and their media whores (not to be mistaken for the fat slobbering pimp Barney Frank).

Franklin| 3.22.10 @ 9:05PM

This was a good article, Stacy, and all the comments are good.

BUT, has no one recalled the nasty drubbing that the Supreme Court received at the State of the Union address?

The sight of those democrats standing over the mute Supreme Court as they clapped and sneered ... don't you think that the Supreme Court may feel the need to kick Obama in the butt?

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astonerii| 3.22.10 @ 10:32PM

I wonder if there should be a Constitutional Amendment to allow states to effectively remove Supreme Court Justices from the bench.

Yosemeti Sam| 3.23.10 @ 1:54AM

" ... The reality of our current Supreme Court
jurisprudence is that federalism is rarely
protected, and only within narrow confines ...."

Well then, it'd be up to SCOTUS associate
Justice Kennedy to pivotably suture the
loosened seams of the CONSTITUTION of
the United States of America torn by the
machiavellian HR and Senate junta spurning
the will of a majority of law-abiding Americans - not so?

JJ| 3.23.10 @ 2:26PM

The tragic (TOXIC) dumbing down of the conservative movement (1950s-present):

Buckley / Goldwater (rolling over in their graves)

Nixon's Secret Plan & Southern Strategy

Reagan (Trickle-down & massive DEBT)

Religious right hijacks Jesus.

GOP hijacks the flag.

Limbaugh & Hate Radio

Family values hypocrisy

Fox "News"

Bush/Cheney

P...alin

Birthers

Beck

GOP-Baggers (GOP hijacks Tea Party.)

The abyss? Conservatives, you are HERE.

ThomasG| 3.23.10 @ 6:21PM

Aren't y'all forgetting that the individual mandate was developed by your conservative Heritage Foundation and first implemented in Massachusetts by Mr. Mitt Romney? This mandate is no socialist plot; it's common sense. You don't carry insurance, then I pay for you at the emergency room. What happened to "personal responsibility"?

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Cris Worth| 3.24.10 @ 7:51PM

I wonder if the Supreme Court could declare the constitution unconstitutional vote it out of existence and open a constitutional convention. It would take only 5 votes to null and void it. I thought of it why didn't the Warren court think of it? They came up with one nonsensical decision after another. It would have made sense.

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Daniel| 5.7.10 @ 5:27AM

You know, leading a country isn't a easy task, and I don't think there's an obvious solution, if not, it will have be found for we are looking at it. Happily our country is a democracy, and it can help it to evolve, and to correct its errors.

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John| 5.30.10 @ 12:12PM

That is an interesting angle, Davingit depends which way you look at it I guess.

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Stephen Schumacher| 10.19.10 @ 12:46PM

I think I'm going to have to agree with Daniel here. It's not easy leading a country and we shouldn't expect for a president to come along and fix everything. I'm not exactly sure why everyone has their expectations so high - maybe because of our last president - I don't know. To the guy above this comment - I agree with you too. I can't stand it when people talk about subjects without being informed. I guess the same goes for voting. Don't vote if you don't understand the issues and who you're voting for. Too many people go and vote just because they've been told to vote a certain way their entire life. I think if people actually read about each candidate and what they have to offer that this country would be in a better position. Too many people vote for things they don't really believe in, it's just the "right thing to do". It all starts with our education system.

Thanks, Stephen

Newtonlaw| 10.20.10 @ 6:50AM

Our Constitution was elegantly designed to protect individuals from too much concentration of power in any one source, but the Supreme Court has evolved into a body that has travel health insurance protected and even facilitated the modern regulatory state at the expense of our founding principles.

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Agree, what the heck is he doing?

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The government will argue that it has the authority to impose the individual mandate under the Commerce Clause of the Constitution.

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