The legal challenge to the Affordable Care Act, which I advocated as a law professor before representing the National Federation of Independent Business as a lawyer, was about two huge things: saving the country from Obamacare and saving the Constitution for the country.
On Thursday, to my great disappointment, we lost the first point in the Supreme Court’s 5 to 4 ruling to uphold the health-care law. But to my enormous relief, we won the second. Before the decision, I figured it was all or nothing. But if I had been made to choose one over the other, I would have picked the Constitution.
In November, voters can still fight Obamacare. Yet no single election could have saved the Constitution from the court.
This battle for the Constitution was forced upon defenders of limited government by Congress in 2010, when it insisted in the health-care bill that it was constitutional to require all Americans to purchase insurance or pay a fine. Lawmakers argued that this mandate was justified by the Constitution’s commerce and “necessary and proper” clauses. Had we not contested this power grab, Congress’s regulatory powers would have been rendered limitless.
They are not. On that point, we prevailed completely. Indeed, the case has put us ahead of where we were before Obamacare. The Supreme Court has definitively ruled that the commerce, necessary and proper clause, and spending power have limits; that the mandate to purchase private health insurance, as well as the threat to withhold Medicaid funding unless states agree to expand their coverage, exceeded these limits; and the court will enforce these limits.
On the commerce clause, Chief Justice John G. Roberts Jr. and four dissenting justices accepted all of our side’s arguments about why the insurance mandate exceeded Congress’s power. “The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause,” Roberts wrote. “That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.”
Roberts adopted this view for the precise reason we advanced: Granting Congress this power would gravely limit the liberties of the people. As he put it: “Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and — under the Government’s theory — empower Congress to make those decisions for him.”
Regarding the necessary and proper clause, supporters of the health-care overhaul had invoked the power of Congress “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers,” seeing it as a constitutional carte blanche to adopt any means to facilitate the regulation of insurance companies. Roberts squarely rejected this argument: “Even if the individual mandate is ‘necessary’ to the Act’s insurance reforms, such an expansion of federal power is not a ‘proper’ means for making those reforms effective.”
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