The Maryland Public Policy Institute
In a surprise to most observers, the Supreme Court upheld almost all of the Affordable Care Act (“Obamacare”). Chief Justice John Roberts joined the majority in finding that there was no “mandate” to buy health insurance; instead, Congress simply passed a tax on those who didn’t buy it (even though Congress and the president said it wasn’t a tax but a penalty). What exactly does that mean?
While I know a little about health care and constitutional law, I don’t know much. It’s probably better I just let a few of the experts on these issues expound on the situation.
First, George Will finds some hope in the decision. The Obama Administration primarily justified the individual mandate under the constitutional power to regulate commerce between the states. As Will points out, the Court rejected this expansive view of the Commerce Clause:
If the mandate had been upheld under the Commerce Clause, the Supreme Court would have decisively construed this clause so permissively as to give Congress an essentially unlimited police power — the power to mandate, proscribe and regulate behavior for whatever Congress deems a public benefit. Instead, the court rejected the Obama administration’s Commerce Clause doctrine. The court remains clearly committed to this previous holding: “Under our written Constitution . . . the limitation of congressional authority is not solely a matter of legislative grace.”
Instead, the Court said that this penalty was a tax, not a regulation of interstate commerce. This creative use of the federal government’s taxing power has long been known as a way around constitutional objections. In 1934, while the Roosevelt Administration was trying to figure out a way to justify the creation of Social Security, Supreme Court justice Harlan Stone reportedly told Labor Secretary Frances Perkins there was an easy way to do it: “The taxing power of the federal government, my dear; the taxing power is sufficient for everything you want and need.”
However, as Ilya Shapiro of the Cato Institute explains, using the federal government’s taxation powers is just as bad for liberty as trying to justify governmental overreach under the Commerce Clause:
Justifying the individual mandate under the taxing power, however, in no way rehabilitates the government’s constitutional excesses. As Justice Kennedy said in summarizing his four-justice dissent from the bench, “Structure means liberty.” If Congress can slip the Constitution’s structural limits simply by “taxing” anything it doesn’t like, its power is no more limited than would it be had it done so under the Commerce Clause.
Regardless of the reasons for the decision, ObamaCare stands. For those of us who oppose it, the battle shifts to the policy and political arena, as Roger Pilon of the Cato Institute explains:
It will fall to Congress, then, to undo this monstrosity, if it can. Under the Constitution, as written, health care would be provided like any other service that’s stayed largely free from government control. But starting with World War II wage-and-price controls and the tax advantages that were given to employer-provided health insurance, it’s been one government intrusion after another and a textbook example of how government can completely mess up what free markets plus voluntary charity can efficiently order while respecting the rights and dignity of people in the process. That’s a vision, the Founders’ vision, that Congress can restore, even if this Court has failed to do its part today.
In Maryland, with a governor and legislature that has firmly embraced ObamaCare, the battle will be even tougher. But as the bad policy from this law makes our health care situation worse, perhaps we’ll have opportunities to introduce true reform measures.
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