Constitutional Opinions

Suing Obamacare

The states' lawsuit over Obamacare raises fundamental issues of individual liberty and government power.

By 7.20.10

While the lawsuit brought by twenty States challenging the constitutionality of the Obama Administration's healthcare legislation initially received much publicity, the Administration's recent response to that lawsuit has garnered relatively little attention. However, even a cursory review of the Administration's motion to dismiss the case presents an expansive view of government power and a narrow construction of individual liberties that is profoundly troubling.

The Administration's response to the States' lawsuit can be summed up in a single word: surreal. The Administration devotes most of its submission to arguing that the lawsuit is premature because individuals and the States have not yet suffered any injury or that any injury is "speculative." In making this argument, the Administration simply ignores reality. Already, insurers have indicated that the new healthcare legislation will impose additional costs, increase premiums, and restrict the scope and availability of private insurance coverage. In fact, the Administration itself concedes that some individuals will "suffer injury" when the legislation becomes fully effective in 2014.

More fundamentally, there can be no dispute that the legislation interferes with individuals' freedom to make health care decisions and engages in a massive redistribution of wealth. The Administration's brief acknowledges that the legislation imposes a significant "tax penalty" for those who fail to purchase health insurance (the so-called "individual mandate") that "will raise substantial revenue," while at the same time extending "subsidies and tax credits to the large majority of the uninsured." The Administration's assertion that the ability to make health insurance decisions constitutes a "purely economic interest, not a fundamental right" similarly ignores the fundamental nature of such decisions. Decisions regarding one's own health and medical care are among the most significant, and personal, decisions one can make.

The Administration's expansive view of the federal government's power is likewise profoundly disturbing. In order to defend this unprecedented government power grab, the Administration argues that the federal government's authority is essentially unlimited, asserting for example that "Congress's taxing and spending power under the General Welfare Clause is 'extensive.'" However, the federal government has never claimed, and the courts have never held, that the government has authority to essentially dictate one-sixth of the nation's economy. Indeed, while the Administration characterizes the States' lawsuit as meritless and based on "philosophical or political opposition" rather than solid legal grounds, it takes the Administration sixty pages to explain why it has not overstepped constitutional bounds.

Recognizing the tenuous nature of its claims, the Administration's brief seeks to downplay the health care legislation as merely an "expansion" of the existing Medicaid system. Once again, however, the Administration simply ignores reality. The Administration and its supporters repeatedly characterized the health care bill as landmark legislation that "answered the call of history." Indeed, the Administration's own brief acknowledges that the legislation imposes a "comprehensive system of reform" that seeks to regulate "a vast interstate market consuming an estimated 17.5 percent of our gross domestic product."

Perhaps most troubling, the Administration justifies its exercise of this sweeping power by characterizing the American public as either infantile, unable to make appropriate choices regarding its own health care, or as malicious. It argues that the individual mandate is an "essential" aspect of the health care legislation because, in its absence, individuals may make the "wrong" decision and forgo health insurance, potentially leading to a number of negative consequences for their own health and economic welfare. However, the Administration goes even further, arguing that, in the absence of the individual mandate, the American people might "game the system" by "waiting until disease develops or an accident occurs to purchase insurance."

The implications of the government's arguments in defense of the health care legislation are significant. The worldview espoused by the Administration is one in which the power of the federal government is unlimited and in which that power must be exercised because ordinary Americans are simply incapable of managing their own affairs and must have government bureaucrats do it for them. Once again, the Obama Administration has demonstrated that it is profoundly out of touch with the vision of our founders -- and the American public.

Recently we celebrated our independence from overweening government. As the Administration's arguments make clear, we are losing the same freedoms that our founders sought to preserve. 

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About the Author
Douglas Smith is a Senior Lecturer in Residence at Loyola University Chicago School of Law and adjunct scholar at the American Enterprise Institute.