More Thoughts On The Decision

No, not The Decision


I  mean yesterday's Supreme Court decision on the healthcare law.  I've only read excerpts of the opinions and some commentaries so I'll limit my comments to two general observations along with some advice from a Dr that you can find at the end.  You'll probably see a further post on The Decision in a few days.

1.  While this may be the end of constitutional challenges to the entire statute it is only the start of a wave of litigation over the next few years regarding various aspects of the healthcare law.  Because of its scope, complexity and structure as an extensive regulatory scheme with a goal of controlling a large swath of the American economy and the lives of its citizens, Obamacare will inevitably butt up against many aspects of what have, until now, been considered aspects of private life, triggering conflicts with our Constitutionally protected liberties, including rights of association, free speech, religion and, to put it at its most basic, our rights to be left alone.  There is simply not enough space in society for Obamacare and constitutional liberties to co-exist in peace.  Sort of like when the Lakers had both Kobe and Shaq on their team a few years ago.


A totalizing legislative scheme requiring (by some counts) more than 1,000 new regulations and establishing new, and largely unaccountable, administrative bodies such as the Independent Payment Advisory Board (IPAB) in an area intertwined with every aspect of our economy and our lives will be a source of unending friction in our society.

The administration's assault on religious liberty (via the contraception mandate) and its directive to insurers to provide a product for free (why didn't the Adminstration just cut out the middleman and order contraceptive manufacturers to provide their products for free?) is just the beginning.  The outcome of these conflicts has the potential to fundamentally redefine the relationship between citizens and the government.  Brace yourselves.

2.  The refusal of the Court to support the further expansion of Federal power under the Commerce Clause, while heartening, merely maintains the status quo.  It's a good thing since upholding the mandate on Commerce Clause grounds would have led to the clause swallowing the rest of the Constitution except for whatever liberties a majority of the Court decided to periodically rescue from the wreckage of civil society in the future.  It is also a much bigger issue than Obamacare and it cuts across political lines.  A socially conservative Congress combined with an unbounded Commerce Clause could generate some unpleasant consequences for liberal supporters of the "anything goes for the gov" position.

The problem is that we are only one justice away from having a Court willing to grant the Federal Government this power.  Four justices, Breyer, Kagan, Sotomayor and Ginsburg are already on record being unwilling to put any general limitation on the scope of the Commerce Clause.  While these justices have been willing in non-Commerce Clause cases to join the other justices in resisting the Adminstration's attempts to expand its power - for instance, in the 9-0 vote striking down the Administration's claim that it had the right to review and approve the hiring practices of religious institutions (Hosanna-Tabor, opinion by Roberts) and in the 9-0 vote to reject the Administration's position that attaching a GPS to a vehicle in order to track it is not a search under the 4th Amendment (US v Jones, opinion by Scalia) they will not budge on the Commerce Clause.  Nothing can stand in its way because any limits would undo the fundamental  progressive view that the Federal Government has the authority to do anything except for those specific and limited areas that the Justices are willing to delegate back to citizens.  It is a fundamentally different default view of the Constitution than the understanding that rights originated with the citizens and states and are retained by them except for those powers delegated to the Federal Government; a view which was the commonly accepted understanding for the first 150 years of the United States.

The primacy of the Commerce Clause in progressive thought can explain what seems otherwise inexplicable - the abandonment of other progressive values in deference to the Commerce Clause.  For instance, "empathy" which we've heard is a paramount value for justices.  Yet, in Gonzalez v Raich (2005), the Court was faced with the case of Angel Raich, a California women suffering from cancer and severe pain who, under a doctor's recommendation, had grown marijuana at home for medical purposes to control pain.  She did so in full compliance with existing California law.  However, the Federal Government asserted the right to destroy the marijuana and, at its discretion, prosecute the growers.  Since the marijuana was grown at home and solely consumed at the residence, a challenge was raised to the Federal action based on a Commerce Clause claim.  All of the liberal justices rejected the Commerce Clause challenge in an opinion written by Justice Stevens.  Why? Because any general limitation on the scope of the government's powers under the Commerce Clause is too constraining if you are trying to build an overarching regulatory state.

Other times it shows up as "the dog that did not bark".  In Gonzalez v Carhart (2007), the Court, in a 5-4 decision authored by Justice Kennedy upheld a congressional ban on partial birth abortions.  All of the liberal justices dissented.  Whatever one thinks of partial birth abortions as a matter of morality and/or policy, one question from a legal perspective is under what Constitutional authority did Congress enact the legislation.  It turns out the claimed authority was under the Commerce Clause.  It is very difficult to see, even under existing precedent, how the reach of the Commerce Clause extended to this subject and it could have been subject to a strong Commerce Clause challenge.  Yet the liberal groups litigating the case never even raised the issue and thus it played no role in the decision.  Why?  Because any general limitation on the scope of the government's powers under the Commerce Clause is too constraining if you are trying to build an overarching regulatory state and thus it was even worth risking the loss of an abortion case for the greater good.

That's my take.  But, since this is about healthcare maybe it's more appropriate to seek a doctor's advice.  So herewith is Dr John giving his expert opinion: