Today the Supreme Court begins to hear a constitutional challenge to the Patient Protection and Affordable Care Act, better known as Obamacare. But this case really goes a long way toward deciding whether we have constitutionally limited government at all. The extent to which liberals, both in the legal and political spheres, have mocked and derided these lawsuits demonstrates their contempt for the doctrine of enumerated powers, on which the entire Constitution is based.
If the Supreme Court accepts the individual mandate, even under the pretext of regulating interstate commerce, the federal government will have exactly what those who framed and ratified the Constitution sought explicitly to deny it: a general police power. If the Court accepts that the individual mandate is a legitimate tax, then the federal government can levy taxes for any purpose, not just to carry out functions delegated to it by the Constitution.
People may laugh or roll their eyes at the idea of the federal government forcing people to eat broccoli. Under questioning from Sen. Tom Coburn at her confirmation hearings, Justice Elena Kagan personally found the idea of congressionally regulated personal diets ridiculous -- even though she was unable to make an argument for why this would be unconstitutional that was consistent with the constitutionality of the mandate. This is an issue that goes far beyond health care.
The justices could still punt on whether the individual mandate and other key Obamacare components are constitutional. Under the Anti-Injunction Act, an individual does not have standing to challenge a tax until he has paid it. The individual mandate, which Obama legal eagles insist is a tax even as Obama politicos steadfastly deny it, hasn't yet taken in effect. In my view, the Anti-Injunction Act doesn't impact the states' legal standing. I also think it is unlikely the Supreme Court would carve out so much time for this case only to rule that it needs to be decided later.
But what's at stake here isn't a particular health care policy, or the legacy of one president, or the outcome of a single presidential election. It is whether we respect that Founding Fathers' idea of a federal government whose powers are few and defined, laid out in a Constitution that imposes substantive as well as procedural limits on federal power. It is hard to rule in favor of Obamacare without ruling against the Founders' Constitution.
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