Legal scholars weigh in on Obamacare decision

Rick Moran
Some thoughts from leading scholars and attorneys regarding the Supreme Court decision on the Affordable Care Act.

(Note: The quotes were kindly passed along by Amanda Carey of CRC Public Relations in Alexandria, VA.)

Randy Barnett, professor of law, Georgetown University:  "Today's decision validates our claim that a Congressional power to compel that all Americans engage in commerce was a constitutional bridge too far.  By rewriting the law to make it a 'tax,' the Court has now thrown ObamaCare into the political process where the People will decide whether this so-called 'tax' will stand.  And the People will also decide whether future Supreme Court nominees will pledge to enforce the Constitution's restrictions on the power of Congress." 

Stephen Presser, professor of law, Northwestern University: "With the Chief Justice's turning to the taxing power to justify the individual mandate, what his opinion takes away under the Commerce clause, is, in effect, given back.  This is particularly disappointing, because the authors of the Affordable Care Act, and its defenders, such as President Obama, repeatedly assured the American people that it was a measure that would reduce costs, not increase them, and that the Act was not an attempt to raise taxes.  A tax measure is less politically palatable then an 'individual mandate,' and had the penalty provisions of the individual mandate been frankly acknowledged to be a tax, it would have been more difficult to pass the Act, perhaps even impossible, given the closeness of the margin by which it was enacted."

Carrie Severino, chief counsel, Judicial Crisis Network: "I am disappointed with today's Supreme Court decision because the Court has cleared the way for what looks like a very broad use of the tax power.  But we can still be very thankful that the court has defended the contours of the Commerce Clause. This litigation has spurred a national debate about health care that showed the Democrats' predictions were wrong: The more Americans have learned about this health care law, the less they like it. Today's case has laid the groundwork for a committed movement to repeal PPACA and search for an alternative that respects both individual rights and the Constitution."

Ilya Somin, Associate Professor of Law at George Mason University: Today's closely divided decision shows that the Supreme Court takes the need for constitutional limits on federal power seriously, but not seriously enough.

Chief Justice Roberts' opinion correctly recognizes that Commerce Clause does not allow Congress to force people to purchase products they don't want. He also recognizes that giving Congress that power would be both unconstitutional and dangerous. That's a valuable precedent for future cases.

The problem is that he then allows Congress to impose almost any mandate it wants so long as it is structured as a so-called "tax." Yet even he recognizes that interpreting this mandate as a tax is not "the natural reading" of the legislation.


Karen Harned, executive director, NFIB Legal Center (NFIB was lead plaintiff
): "It is with great disappointment that NFIB and all small business owners accept the Supreme Court's decision to uphold the healthcare law.

"When President Obama signed his signature piece of healthcare legislation into law in early 2010, NFIB heard from its members -- small businesses all across the country -- who were unhappy, fearful and downright angry about the law.

"This day will go down in history as the day when Americans lost their freedom - the freedom to choose what to buy with their own money. Now there is nothing stopping Congress from forcing citizens to buy broccoli, cars, gym memberships, solar panels or anything else.

"Small businesses are resilient, innovative and creative. They have overcome an enormous amount of government interference in their lives and their businesses. Like all Americans, they now face a new reality - one our nation's Founders worked so hard to avoid - in which there are no constitutional limits to what Congress can tell each of us to do."

Ilya Shapirio, Senior Fellow in Constitutional Studies, the Cato Institute: Today's baby-splitting decision rewrites the Affordable Care Act in order to save it. It's certainly gratifying that a majority rejected the government's dangerous assertion of power to require people to engage in economic activity in order to then regulate that activity. That vindicates everything that we who have been leading the constitutional challenge have been saying: The government cannot regulate inactivity.  It cannot, as Chief Justice Roberts put it, regulate mere existence.

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.  While imposing new taxes may be politically unpopular and therefore harder to do than creating new regulations, that political check does not obviate constitutional ones-and in any event, Congress avoided even that political gauntlet here by explicitly structuring the individual mandate as a commercial regulation.

Nor does the Court vindicate its constitutional slight-of-hand by rewriting the Medicaid expansion to tie only new federal funding to an acceptance of burdensome and fundamentally transformative regulations.  While correct on its face-and a good exposition of the spending power and what strings the federal government can attach to its funds-that analysis is relevant to a hypothetical statute, not the one that Congress actually passed.  Moreover, allowing states to opt out of the new Medicaid regime while leaving the rest of Obamacare in place throws the insurance market into disarray, increases costs to individuals, and gives states a different Hobson's choice-different but no less tragic than the one it previously faced. As Justice Kennedy wrote in dissent, while purporting to apply judicial modesty or restraint, the Court's rewriting of the law is anything but restrained or modest.

In short, we have reaped the fruits of two poisonous trees of constitutional jurisprudence:  On the one (liberal activist) hand, there are no judicially administrable limits on federal power.  On the other (conservative pacifist) one, we must defer to Congress and presume (or construe) its legislation to be constitutional.  It is that tired old debate that produces the Frankenstein's monster of today's ruling.  What judges should be doing instead is applying the Constitution, no matter whether that leads to upholding or striking down legislation.  And a correct application of the Constitution inevitably rests on the Madisonian principles of ordered liberty and limited government that the document embodies.

In any event, the ball now returns to the people, who opposed Obamacare all along and whence all legitimate power originates.  It is ultimately they who must decide-or not-to rein in the out-of-control government whose unconstitutional actions have taken us to the brink of economic disaster.


Some thoughts from leading scholars and attorneys regarding the Supreme Court decision on the Affordable Care Act.

(Note: The quotes were kindly passed along by Amanda Carey of CRC Public Relations in Alexandria, VA.)

Randy Barnett, professor of law, Georgetown University:  "Today's decision validates our claim that a Congressional power to compel that all Americans engage in commerce was a constitutional bridge too far.  By rewriting the law to make it a 'tax,' the Court has now thrown ObamaCare into the political process where the People will decide whether this so-called 'tax' will stand.  And the People will also decide whether future Supreme Court nominees will pledge to enforce the Constitution's restrictions on the power of Congress." 

Stephen Presser, professor of law, Northwestern University: "With the Chief Justice's turning to the taxing power to justify the individual mandate, what his opinion takes away under the Commerce clause, is, in effect, given back.  This is particularly disappointing, because the authors of the Affordable Care Act, and its defenders, such as President Obama, repeatedly assured the American people that it was a measure that would reduce costs, not increase them, and that the Act was not an attempt to raise taxes.  A tax measure is less politically palatable then an 'individual mandate,' and had the penalty provisions of the individual mandate been frankly acknowledged to be a tax, it would have been more difficult to pass the Act, perhaps even impossible, given the closeness of the margin by which it was enacted."

Carrie Severino, chief counsel, Judicial Crisis Network: "I am disappointed with today's Supreme Court decision because the Court has cleared the way for what looks like a very broad use of the tax power.  But we can still be very thankful that the court has defended the contours of the Commerce Clause. This litigation has spurred a national debate about health care that showed the Democrats' predictions were wrong: The more Americans have learned about this health care law, the less they like it. Today's case has laid the groundwork for a committed movement to repeal PPACA and search for an alternative that respects both individual rights and the Constitution."

Ilya Somin, Associate Professor of Law at George Mason University: Today's closely divided decision shows that the Supreme Court takes the need for constitutional limits on federal power seriously, but not seriously enough.

Chief Justice Roberts' opinion correctly recognizes that Commerce Clause does not allow Congress to force people to purchase products they don't want. He also recognizes that giving Congress that power would be both unconstitutional and dangerous. That's a valuable precedent for future cases.

The problem is that he then allows Congress to impose almost any mandate it wants so long as it is structured as a so-called "tax." Yet even he recognizes that interpreting this mandate as a tax is not "the natural reading" of the legislation.


Karen Harned, executive director, NFIB Legal Center (NFIB was lead plaintiff
): "It is with great disappointment that NFIB and all small business owners accept the Supreme Court's decision to uphold the healthcare law.

"When President Obama signed his signature piece of healthcare legislation into law in early 2010, NFIB heard from its members -- small businesses all across the country -- who were unhappy, fearful and downright angry about the law.

"This day will go down in history as the day when Americans lost their freedom - the freedom to choose what to buy with their own money. Now there is nothing stopping Congress from forcing citizens to buy broccoli, cars, gym memberships, solar panels or anything else.

"Small businesses are resilient, innovative and creative. They have overcome an enormous amount of government interference in their lives and their businesses. Like all Americans, they now face a new reality - one our nation's Founders worked so hard to avoid - in which there are no constitutional limits to what Congress can tell each of us to do."

Ilya Shapirio, Senior Fellow in Constitutional Studies, the Cato Institute: Today's baby-splitting decision rewrites the Affordable Care Act in order to save it. It's certainly gratifying that a majority rejected the government's dangerous assertion of power to require people to engage in economic activity in order to then regulate that activity. That vindicates everything that we who have been leading the constitutional challenge have been saying: The government cannot regulate inactivity.  It cannot, as Chief Justice Roberts put it, regulate mere existence.

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.  While imposing new taxes may be politically unpopular and therefore harder to do than creating new regulations, that political check does not obviate constitutional ones-and in any event, Congress avoided even that political gauntlet here by explicitly structuring the individual mandate as a commercial regulation.

Nor does the Court vindicate its constitutional slight-of-hand by rewriting the Medicaid expansion to tie only new federal funding to an acceptance of burdensome and fundamentally transformative regulations.  While correct on its face-and a good exposition of the spending power and what strings the federal government can attach to its funds-that analysis is relevant to a hypothetical statute, not the one that Congress actually passed.  Moreover, allowing states to opt out of the new Medicaid regime while leaving the rest of Obamacare in place throws the insurance market into disarray, increases costs to individuals, and gives states a different Hobson's choice-different but no less tragic than the one it previously faced. As Justice Kennedy wrote in dissent, while purporting to apply judicial modesty or restraint, the Court's rewriting of the law is anything but restrained or modest.

In short, we have reaped the fruits of two poisonous trees of constitutional jurisprudence:  On the one (liberal activist) hand, there are no judicially administrable limits on federal power.  On the other (conservative pacifist) one, we must defer to Congress and presume (or construe) its legislation to be constitutional.  It is that tired old debate that produces the Frankenstein's monster of today's ruling.  What judges should be doing instead is applying the Constitution, no matter whether that leads to upholding or striking down legislation.  And a correct application of the Constitution inevitably rests on the Madisonian principles of ordered liberty and limited government that the document embodies.

In any event, the ball now returns to the people, who opposed Obamacare all along and whence all legitimate power originates.  It is ultimately they who must decide-or not-to rein in the out-of-control government whose unconstitutional actions have taken us to the brink of economic disaster.