Opponents of Obamacare have welcomed Judge Roger Vinson’s decision that not only is the individual mandate unconstitutional, but that that renders the entire 2,000 plus page scheme unconstitutional. (The previous ruling that the individual mandate was unconstitutional by Judge Henry Hudson did not overturn the entire statute.) Although everyone recognizes that the issue will ultimately only be settled one to two years from now in the Supreme Court, Judge Vinson’s decision has heartened Obamacare opponents who are fighting politically in Congress and in the states to limit its impact now. Recognizing that perception can become reality, the leftist legal establishment has counterattacked with an op-ed in the New York Times by Harvard law professor Laurence Tribe. Professor Tribe contends not only that Obamacare is constitutional, but that all of the current Supreme Court justices except for Clarence Thomas will vote to uphold it.
While I join other constitutional conservatives in celebrating Judge Vinson’s decision, a good lawyer must be willing to take a cold, hard look at his or her opponent’s legal position and plan for contingencies accordingly. Obamacare rests on Congress’ power under the Constitution to “regulate commerce … among the several States.” From the founding through 1936 that clause was interpreted as excluding activities which occurred only within one state. Under that original interpretation, not only Obamacare but much of modern federal economic regulation would be indisputably unconstitutional. However, in 1937 the Supreme Court began to reinterpret the interstate commerce clause. The culmination of this reinterpretation was the 1941 case of Wickard v. Filburn, which upheld a penalty against an Ohio farmer for growing more crops than allotted to him under federal agriculture regulations even though he only consumed them on his own farm. The Supreme Court held that the interstate commerce clause allowed Congress to regulate anything which might affect economic activity in another state (by growing his own food instead of buying it Mr. Filburn might depress prices for crops sold interstate).
Professor Tribe bases his defense of Obamacare on this interpretation of the interstate commerce clause. Indeed, for decades after 1937 the Supreme Court found no federal economic regulation unconstitutional. There was some hope that the Supreme Court would finally put some bound to this interpretation in the 1990s when it held that the interstate commerce power did not extend federal jurisdiction to carrying guns near schools and rape. However, that hope suffered a serious setback in the 2005 case of Gonzalez v. Raich which held that federal regulatory power extended even to a cancer victim who grew marijuana plants in her own home for her own use pursuant to California’s medical marijuana law. Here even Justice Antonin Scalia voted for federal power, and Professor Tribe cites this as proof that Justice Scalia would vote to uphold Obamacare.
The issue is bigger than even Obamacare, which is pretty big. Is there any limit on federal regulatory power? The Wickard rationale can easily be interpreted to say that there is none. The plaintiffs in the Obamacare cases are in the legally awkward position of having to argue that somehow there is some line somewhere. The line they are trying to draw is a distinction between activity and inactivity. Professor Tribe correctly notes in his article that this distinction fails if we allow that the fine for failing to buy health insurance is a tax. In his decision Judge Vinson rejected that argument because of the politically deceptive refusal of congressional Obamacare proponents to describe the fine as a tax. However, other federal courts have accepted that argument.
Judge Vinson has declared “this far but no farther!” I would be overjoyed if his opinion were to be adopted by a majority of the high court. However, we must recognize that the Wickard and Gonzalez cases are mighty obstacles to defeating Obamacare in the Supreme Court. Moreover, even if there is some line drawn by the Supreme Court against the individual mandate, “this far” is still very far beyond the original meaning of the interstate commerce clause. The legal attack on Obamacare must proceed on the assumption that all previous federal economic regulation is valid. A victory against Obamacare would be a great victory for freedom, but would still leave vast fields in which the federal leviathan can romp triumphant over our liberties.
So what do we do? Of course, we pursue the fight in the courts. However, given the weight of the New Deal interstate commerce clause legal precedents, we must not rely on victory there. The obvious contingency is political action in Congress to repeal Obamacare, which must be pursued with unfailing vigor now and through the 2012 elections.
Ironically Professor Tribe points us toward a third alternative. In his article, even he acknowledges that Justice Thomas “can be counted a nearly sure vote against the health care law” because “he alone has publicly and repeatedly stressed his principled disagreement with the whole line of post-1937 cases that interpret Congress’s commerce power broadly.” A return to the pre-1937 interpretation of the interstate commerce clause would not only sweep away Obamacare, but a host of other “one-size-fits-all” regulatory regimes which have been imposed on America by a corrupt, over-centralized, bureaucracy-ridden national government.
Of course, Justice Thomas can not persuade even Justice Scalia to take this step judicially. However, there is a method of accomplishing a return to the original understanding of the interstate commerce clause in one stroke. That is constitutional amendment. This post is already too long, so I refer anyone who has read this far to my further discussion of how we can achieve that here. With typical leftist arrogance, Professor Tribe entitled his article “On Health Care, Justice Shall Prevail.” Such an amendment would restore justice by allowing the entire American people to declare “not even this far” to the federal imperialism which Obamacare so blatantly represents.