The Supreme Court has granted certiorari in most of the Obamacare cases challenging the individual mandate that requires everyone to buy health insurance or pay a penalty. Those cases were brought by 26 states to challenge the mandate under the commerce clause arguing that Congress does not have the power to require individuals to buy health insurance. The crux of the argument is that those who do not buy health insurance are not engaged in interstate commerce, nor does their “inactivity” have an impact on interstate commerce. This latter part of the argument is necessary because of the 1942 case of Wickard v. Filburn in which the Supreme Court upheld a New Deal regulation that designated how much wheat a farmer could grow based upon acreage owned. The regulation was an attempt to drive up wheat prices. The farmer in question grew wheat for his own use and did not sell any of it in interstate commerce. Under prior precedents, and common sense, the commerce clause should not have given Congress the power to regulate this farmer’s production of wheat because none of his wheat was moving in interstate commerce. But the Supreme Court held that his growing of wheat for his own use nevertheless had an effect on interstate commerce because by growing his own he would not have to buy wheat in the market.
Wickard v. Filburn has long been criticized for going too far in Constitutional interpretation, and the Obamacare case will rest heavily on the continued viability of the Wickard reasoning. The argument that is based on “activity versus inactivity” is an attempt to eke out a win even if the court refuses to overrule Wickard. That has worked in at least one of the lower court decisions. The recent case out of the District of Columbia Court of Appeals is a blow to the Obamacare cases because the plaintiffs lost in a decision written by Reagan appointee and solid conservative Judge Lawrence Silberman. Some think that if even a conservative judge like Judge Silberman believes the individual mandate passes muster under the Commerce clause, the cases are doomed in the Supreme Court where the opinion of one Justice, Anthony Kennedy, probably holds the key to the final outcome. However, Judge Silberman based his ruling on Wickard, saying that he was compelled to do so by Supreme Court precedent. If that were all he said it wouldn’t be such a bad decision for the advocates against the individual mandate of Obamacare. However, Judge Silberman also said what others have done their best to ignore. That is the Constitutional grounds for all the civil rights laws of the 1960’s barring discrimination based upon race in hotel/motel accommodations and seating in restaurants and lunch counters. If all that is required is for Congress to show an indirect effect on interstate commerce, these laws are all constitutional. But if a direct effect is required by people or things actually moving across state lines, i.e., if Wickard is no longer good law, those laws which bar a single lunch counter operating all in one state from not seating customers based upon their race would be unconstitutional because such a lunch counter is not engaged in interstate commerce, and therefore Congress would lack power to legislate in that area.
No one has said it yet, but it would seem that a host of Federal gun control laws should also fall for lack of Congressional power.
Some legal scholars argue that the civil rights laws can be easily distinguished from the Obamacare mandate, but most wish the subject of the civil rights laws had never come up. Nobody wants to have the civil rights laws brought into question by the Obamacare mandate. Judge Silberman did not abandon his conservative principles when he ruled in favor of upholding the Obamacare mandate. He actually upheld those principles by adhering to the precedent of a higher court and holding that it should be up to that court whether to overrule it. He also wrote an impressive opinion based on sound legal scholarship, another common trait of conservative judges. It’s just that he might have been more creative in distinguishing the civil rights laws in order to reach the result he probably would have liked to reach. But that’s what liberal judges do.
The Supreme Court has asked that all issues be briefed, including whether the suits should be barred by the Federal anti-injunction act which bars suits challenging a tax before it becomes effective. This issue is only relevant if the Obamacare mandate is a tax and not a penalty. The Obama administration argued at the time of passage of Obamacare that it was not a tax. After the mandate was challenged in court the Obama administration switched gears and now argue that it is a tax. That figures.
The court also wants briefing of the issue of whether the mandate is severable from the rest of Obamacare. In their rush to ram Obamacare through Congress and down the throats of the American people, the drafters of the legislation forgot to put in a severalability clause. That should mean that if any part of Obamacare is declared unconstitutional the whole thing falls. But in some cases in the past the Supreme Court has allowed severalability even without a severalability clause.
In a stunning development, the Supreme Court has allocated 5 and 1/2 hours of oral argument. That’s a record. The case will be argued in March and the decision will come in June, 2012, before the election.
Some have said this is a no-win for Obama. If Obamacare is overturned in its entirety or even if only the mandate is thrown out it will be a humiliating personal defeat for Obama shortly before the election. If Obamacare is upheld it will be up front and in the face of the voters that they are saddled with a law they despise and the only way to get rid of it is to get rid of Obama and lot of Democrats.
The Obama administration filed for a writ of certiorari in the Supreme Court themselves and ask for an expedited ruling. They might have been trying to head off what is now a certainty, a ruling close to the election.
Sidebar: The civll rights laws have accomplished their goals, and the laws themselves are no longer needed. No restaurant or lunch counter would discriminate on the basis of race today. If any did they would be out of business. This fact is not relevant to the current argument over the scope of the commerce clause, however.
UPDATE: There is a fourth issue that the Supreme Court wants to be briefed and to which they have allocated one hour of the 5 and 1/2 hours for oral argument. That is whether Obamacare’s new conditions on all federal Medicaid funding (expanding eligibility, greater coverage, etc.) constitute an unconstitutional coercion of the states. This is really going to be interesting. Even the very big cases rarely get more than 1/2 hour of oral argument for each side, for a total of 1 hour. That this case will involve 5 and 1/2 hours of argument over several days in unprecedented. The individual mandate is still the big issue and gets the most time — 2 hours.