Power Without Limit

Do You Trust The Political Opposition With The Structure of Power? 
Just Wait Until They Win Next Election.

The ObamaCare Reckoning
Overturning the whole law would be an act of judicial restraint.
WSJ Editorial, March 28, 2012

After the third and final day of Supreme Court scrutiny of the Affordable Care Act, the bravado of the legal establishment has turned to uncertainty and in some cases outright panic. Everyone who said the decision was an easy fait accompli has been proven wrong by a Court that has treated the constitutional questions that ObamaCare poses with the seriousness they deserve.

This reckoning has also been a marvelous public education. The oral arguments have detailed the multiple ways in which the individual mandate upsets the careful equilibrium of the American political system. The Obama Administration's arguments in favor of the mandate to buy health insurance or pay a penalty stand exposed as a demand for unlimited federal power.

Most of the Justices seem to be discomfited by this proposition, to one degree or another, and in Wednesday's session they grappled with the Court's options and the consequences if the mandate falls. Over the 90-minute exchange the Justices conducted a tutorial about the limits of judicial power in handling a huge bill if its core is found to be unconstitutional.

The issue is known as "severability," or what happens to the rest of a law if part of it is struck down. Usually Congress includes a clause that clearly defines its intent in that event. But the Obama Democrats neglected to include one amid the political rush to pass the law, and Supreme Court precedents are less than clear.

The Court could uphold the individual mandate, in which case the point is moot. It could overturn the mandate without invalidating any other provision. Or it could say that everything else never would have passed without the mandate, so everything else should be taken down with it.

That last is the persuasive contention of Paul Clement, the attorney who argued for the 26 states challenging the law. He argued that the mandate is "the very heart of this act" because it is meant to subsidize the insurance regulations that drive up costs. It forces the younger and healthier to buy coverage they may not need to finance people who consume more health care.

That requirement is also tied to ObamaCare's "exchanges" where everyone will buy coverage, which are in turn tied to the new entitlement subsidies, which are in turn tied to the Medicaid expansion, the many tax increases and all the other things on the periphery of the law that wouldn't have passed without the individual mandate.

Justice Ruth Bader Ginsburg said Mr. Clement is asking the Court to conduct "a wrecking operation," before stating that "the more conservative approach would be salvage rather than throwing out everything." The Obama Administration didn't say exactly that, but it did argue that the mandate is indispensable to its supposedly well-oiled regulatory scheme and if it is thrown out the insurance rules should be too.

But Justice Anthony Kennedy doubted Justice Ginsburg's logic, since by taking out only the individual mandate the Court would in effect be creating a new law that Congress "did not provide for, did not consider." To wit, costs would soar without any mechanism to offset them.

"When you say judicial restraint," Justice Kennedy said, "you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the act. I suggest to you it might be quite the opposite." Overturning the mandate alone, he continued, "can be argued at least to be a more extreme exercise of judicial power than to strike the whole."

Justice Antonin Scalia chimed in to note that severing would require the Justices to comb through ObamaCare's 2,700 pages and pick out the parts that are connected to the mandate and those that aren't—essentially asking them to play omniscient time travellers, if not legislators. Striking it down altogether would paradoxically be a gift of judicial modesty by avoiding the legal invention of a new law. A clean slate gives Congress the most options.

As Mr. Clement argued, the best analogy is the Court's misbegotten 1976 Buckley decision, which struck down some campaign finance provisions but not others and has led to a hash of contradictory and ambiguous rules for political speech that continues to this day.

The Court's liberals pushed back by suggesting that the individual mandate is "just a tool to make other provisions work," as Justice Elena Kagan put it. Yet by that standard the Court ought to strike down the entire law or most of it if it strikes down the mandate, because it shows that Congress used an illegitimate device to do things that it could have done constitutionally without it.

***

So far the larger liberal reckoning hasn't been as nuanced as the High Court's, as evidenced by the media mugging of Solicitor General Donald Verrilli. Liberals castigated his performance during oral arguments Tuesday and all but blamed him for any ObamaCare defeat.

Mr. Verrilli may not be Daniel Webster, but he was more than competent. The problem isn't that he's a bad lawyer, it's that he is defending a bad law with the bad arguments that are the best the Administration could muster. Liberal Justices such as Sonia Sotomayor all but begged him to define a limiting principle on the individual mandate and therefore on federal power. He couldn't—not because he didn't know someone would ask but because such a principle does not exist.

Mr. Verrilli came closest to a limiting principle—and got some sympathy from Justice Kennedy—when he claimed that everyone will use health care at some point in their lives, so what's the big deal with making young people pay more earlier?

Even if this were true, it is a deeply radical claim. The government is mandating that everyone buy health insurance specifically, but by this reasoning any economic or personal decisions that touch on health care could be used as a pretext for federal police powers. People who lead healthy lives consume fewer medical services than others, so the government could mandate exercise, a healthy diet, and more.

This is power without limit, which is not what the Constitution provides, or what its framers intended, or what the Supreme Court has ever tolerated. That is why this week's arguments have been so careful, why they have revised the establishment's thinking, and why they are so important for the future of American liberty.