Vindicating ObamaCare: A Constitutional Question Answered

This is intended to be part one of a two part entry dealing with the Supreme Court of the United States‘ decision regarding the health-care overhaul commonly called ObamaCare. In this, the first, I will examine the way in which the Chief Justice of the United States argued and upheld the individual mandate at the heart of the debate over this law. Let me begin by stating this: I am not an advocate for Patient Protection and Affordable Care Act of 2010 and for political reasons I believe it should be repealed. However, my affection for Judicial Supremacy is unwavering even in this instance. I disagree for political reasons with the decision, but not for constitutional reasons. Chief Justice Marshall described our country as one “emphatically termed a government of laws and not of men.”(Marbury v. Madison) And described the role of the Supreme Court as:

It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.(Marbury v. Madison)


And in order to carry out this power the Court stated in 1895, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” (Hooper v. California) Therefore, if there is a means of interpreting a law that does not make it unconstitutional, then the law itself cannot be held as such. Therefore, while I cannot agree with the Opinion of the Court on political grounds as a defender and supporter of the United States Constitution I must agree with the Court that this law does not contain any construction that would render it unconstitutional. I will attempt to explain the Opinion of the Court in as simple terms as possible while explaining why their decision was in fact the correct decision.

There are three questions that the Supreme Court was asked to considered in the case NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS (hereafter simply called National Federation and cited as 567 U. S. ____ (2012)) The first is whether or not the States, Individuals and the National Federation of Independent Business had standing in light of the Anti-Injunction Act, which prohibits a court from hearing a case pertaining to a tax not yet collected. In other words, is Affordable Health Care Act a tax and if so does the Supreme Court have the authority to hear the case. The second question before the Court is whether the Congress of the United States had the authority to issue the Individual Mandate whether under the Commerce Clause, Necessary & Proper Clause or the Taxation Clause of the Constitution. Finally, the Court was asked to review the provision of the law that requires States to engage in the enhanced Medicaid program created by the new law or lose their preexisting benefits for the program. I will say nothing more about the first and third questions than this: The Anti-Injunction Act is not applicable because Congress did not define the penalty imposed on those without insurance as a tax and Congress cannot force the states to engage in the new Medicare/Medicaid program by threatening to rescind the money they receive for the previous versions of the programs.

That leaves us free to examine the Opinion of the Court on the question of whether Congress has the authority to institute the Individual Mandate based on either the Commerce Clause, the Necessary & Proper Clause or the Taxation Clause of the United States Constitution; we will take them as the Opinion does in this order. The Commerce Clause of the Constitution is Article 1 section 8 clause 3 and states, Congress has the authority “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes…” As the Court indicates the Congress can only regulate, not create commerce. If it was eligible to create commerce the remainder of section 8 would not be necessary (567 U. S. ____ (2012).) Therefore, Congress can only regulate existing international or interstate commerce. If the only question was whether or not Congress has, under the Commerce Clause, the authority to issue the individual mandate then it would emphatically be answered in the negative. The Court severely limits the authority of the Commerce Clause by asserting the power extends only to activity, not inactivity. Furthermore, the Commerce Clause only applies to activities not to individuals. In other words, if an individual is not engaged in a particular activity governed under the Commerce Clause they are not subject to the regulation under the Commerce Clause. (567 U. S. ____ (2012)) Uninsured Americans can choose to be uninsured and therefore are not participating in the activity of purchasing health insurance and the laws regulating the purchasing of health insurance cannot extend to those individuals who choose not to engage in the activity. Likewise the Court rejects Congress’ argument that the purchasing of health care insurance and the participating in receiving health care are necessarily the same thing. You can purchase health care insurance without actually receiving care for any variety of circumstances. (567 U. S. ____ (2012)) And as said previously, if the ruling of the Court was predicating entirely upon the argument that Congress can do this because of the Commerce Clause, it would be unconstitutional.

This leads us to the second argument, made in sync with the first as it is often made by the government but will be treated separately to indicate the importance of the Court has done. The Necessary & Proper Clause of the Constitution is generally seen, along with the Commerce Clause, as the omnibus authority granted to Congress to regulate just about anything and everything. In the past the Court has given expansive leniency to Congress for laws adopted under the authority of both clauses. The Necessary and Proper clause states, “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof” (Article 1 section 8 clause 18)  The Court has generally granted Congress the power to create non-enumerated powers in order to carry power those powers that are enumerated in the Constitution. Likewise, Congress has been given the benefit of the doubt on whatever it considers “necessary” in carrying out its duties. However, the Court’s Opinion states that the Necessary and Proper clause cannot be used to support a power used by Congress that is not enumerated by the Constitution nor can it be used to expand the authority of an enumerated power behind its consistently held logical means.(567 U. S. ____ (2012)) In other words, since Congress does not have the authority to create commerce the argument that the individual mandate is supported by the Necessary & Proper clause would grant to Congress a new power that is not enumerated by the Constitution. Likewise, using the Necessary & Proper clause to prop up the Individual Mandate’s constitutionality under the Commerce Clause would extend the authority of the Commerce Clause beyond its intended purpose by allowing those not engaged in international or interstate commerce to be regulated by those laws regulating those forms of commerce. (567 U. S. ____ (2012))

However, while the Court rejected the government’s argument for the individual mandate based on these two powers it did uphold the mandate based upon the government’s secondary argument: Congress has the power under the Taxation Clause to force people to pay a penalty if they do not purchase health insurance. The Taxation Clause states, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States….” (Article 1 section 8 clause 1.) The Constitution restricts this power by stating, “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.” (Article 1 section 9 clause 4.) Using a very complex argument, the Chief Justice argues that the penalty paid by those who refuse to purchase health insurance acts very much like a tax. This runs contrary to what is argued at the beginning of the Opinion when the Court rules that the penalty is not a tax. However, the Court explains that the penalty functions like a tax much like the penalty placed on the purchasing of tobacco, alcohol or lottery tickets. They are designed to discourage a certain behavior by individuals as is directed towards only those who choose to engage in such behavior. The penalty is to be collected by the IRS but the IRS is forbidden from punishing those who fail to pay the penalty. And in fact like the other examples, the penalty for not having insurance is not a penalty at all because not buying insurance is not a criminal act.(567 U. S. ____ (2012)) I have heard some argue that this explanation creates a new definition of what a tax is, but it in fact doesn’t. If one does not make enough money to constitute filing a tax return, the IRS and the government have no way of knowing if the person has insurance let alone the authority to collect the penalty payment. This functions in the exact same way the person who doesn’t make enough money to file a return is not penalized for not filing the return. However, the biggest argument against the rationale is that Congress can not “tax” Americans for not doing something. But it already does do this. If you fail to contribute money to charity you cannot receive the tax deduction. If you don’t purchase a new home, you don’t get the tax credit associated with the new home. In each of these situations you are being penalized for choosing not to do something that has no criminal recourse than to tax you. While this penalty is different in the way it functions (if you don’t buy a new house you don’t pay any more in taxes but if you fail to purchase insurance you do have to pay more) from other tax penalties, deductions and credits it maintains a similar though process since the individual mandate creates a tax that you can be exempt from by having insurance. It is likewise similar to the “sin” taxes placed on alcohol and tobacco products where you are not forced to pay the tax if you don’t purchase the items.

When I first heard the decision this morning I was as upset as everyone else over the Court’s decision but more so over the Chief Justice’s betrayal. As the day wore on I began to realize that he may have had sound reasoning. After reading the Opinion of the Court I am certain that Constitutionally speaking this law does pass. Does this mean that the Affordable Care Act is a good law? No, it is emphatically a bad law but that does not make it unconstitutional. If a construction of the Constitution can be found to incorporate a law, then that law cannot be unconstitutional. The Court did not accept the government’s first justification that they had the power under the Commerce and Necessary & Proper clauses to adopt this law. But the Court did find rationale in the government’s argument that the individual mandate does fall within the purview of the Constitution’s Taxation Clause. While the first part of the mandate cannot be found to have a basis in the Constitution, the second part can and since they are a part of the same instrument it holds as Constitutional.



How the Constitution provides for energy and stability while maintaining liberty and republicanism through separation of powers.

Energy and stability have been the greatest questions in government since the ancients first developed the polis. Prior to the United States, no country made better efforts to perfect the art of separation of powers than England has made. Publius describes in Federalist 37 the need for stability and energy in the new government, while at the same time protecting the liberty of the people and the republican way of life. The Constitution of 1787 achieves these aims through a separation of powers between the three branches of the Federal government and the specific make up of the departments.

In order to understand Publius’ argument better, it would be best to take his argument in Federalist 37 first, followed by his discussion of the relationship between the three branches of government. Lastly I will view his discussion of the specific make up of the various branches of the United States Government.

Publius argues for the necessity of a separation of powers in the new government in order to provide for the necessary stability and energy in government while protecting liberty and republicanism. In order to do this he argues that there most be present a separation of powers between the Legislative, Executive and Judicial branches of government. Furthermore, there must be a separation of powers between that of the States and Federal governments. Publius says, “Among the difficulties encountered by the convention, a very important one must have lain in combining the requisite stability and energy in government with the inviolable attention due to liberty and to republican form.”[1] The first attempt at creating a republic with the Articles of Confederation failed due to a lack of energy and stability within the government, thus it was pertinent to create in the new government fixes for these problems. Publius then goes on to explain:

The genius of republican liberty seems to demand on one side not only that all power should be derived from the people, but that those intrusted with it should be kept in dependence on the people by a short duration of their appointments; and that even this short period the trust should be placed not in a few, but in a number of hands.[2]

This is the genius of the new Constitution according to Publius, it has attained the short periods of appointment and dividing the government among many hands. In order that the liberty of the people is not offended, they must remain the source of power for the government.

Yet this is not enough, in order to understand how this present in the Constitution Publius explains further in papers 47-51. In the first of these papers, Publius addresses the allegations by opponents of the proposed plan that it lacks a separation of powers. Publius explains Montesquieu’s argument for the separation of powers by saying, “he did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other.”[3] The magistrate must have the authority to not only enforce the laws passed by the legislative, but also to veto laws that violate the Constitution, and the judicial cannot create laws but can advise the legislative.[4] Publius then goes on to demonstrate that the various Constitutions of the states provide for more blending of the branches of government than the proposed Federal Constitution.

And then in Federalist 48 Publius describes how the Federal Constitution provides a defense through a moderate blend of the branches of government. At first he argues:

But in a representative republic where the executive magistracy is carefully limited, both in the extent and duration of his power, and where the legislative power is exercised by an assembly, which is inspired by a supposed influence over the people with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions by means which reason prescribes; it is against the enterprising ambition of this department that the people out to indulge all their jealousy and exhaust all their precautions.[5]

So in order to prevent the encroachments of the legislative on the rights and liberties of the people, the executive and judicial branches must have authority to reign in the power of the legislative. The legislative is also apt to encroach on the power and freedom of the other branches through pay[6], and thus they must be limited on how they are able to alter the pay of these other branches. Publius provides examples of Virginia and Pennsylvania where the powers of the legislative were not protected against and the judicial and executive branches were usurped by the authority of the legislative. Having demonstrated the dangers of allowing unbridled power to exist within the legislative branch, Publius goes on to explain how it might be possible to prevent the encroachments of one branch on the power of another.

Federalist 49 provides for this explanation and Publius defines that the people alone are the source of charter for the Constitution and its parts. Thus the people alone should be consulted when the powers of the Constitution are in question as to demolishing them, or creating a new power.[7] Appeals to the people are necessary in order to prevent the encroachments of power by the various branches. Yet frequent appeals are insufficient in protecting the freedom of the society. Not only this but it is impossible, as Publius explains, “The members of the executive and judiciary departments are few in number, and can be personally known to a small part only of the people.”[8] Yet the legislative is many in number and can be known by a larger number of the people.[9] Thus the legislative would be most likely to take advantage of the appeals from the people and thus encroach on the various powers of the other branches. As such frequent appeals of the people could turn out to be bad for the stability, energy and liberty of the society as the legislative might take their appeals as a mandate. And so how this can be moderated is discussed next by Publius.

Publius states at the beginning of Federalist 50, “It may be contended, perhaps, that instead of occasional appeals to the people, which are liable to the objections urged against them, periodical appeals are proper…”[10] In order to achieve this, Publius argues that a fixed period for appeals to the people could be detrimental to the purpose of those appeals. If they are too close together Publius argues, “the measures to be reviewed and rectified will have been of recent date, and will be connected with all the circumstances which tend to vitiate and pervert the result of occasional revisions.”[11] Yet by the same token, if they are too far apart then the people are likely not to know each other and to be unaware of the circumstances which lead to the need for revisions. [12] To demonstrate his point, Publius once again looks to the states for an example. He tells of how in Pennsylvania there had been a meeting of censorial council to remedy the defects of their Constitution. He elucidates however that the members of the council were prominent citizens who were members of the parties within the state. Secondly, some of the members of the council had served in the legislative and executive departments. Third, the proceedings of the council were disrupted by the factionalism of the members themselves. And finally, the council either did not understand the limits placed on the legislative and executive, or the legislative completely ignored the changes made by the censorial council.[13] Publius demonstrates properly the difficulty of having occasional or frequent appeals to the people for the remedy of the defects for the Constitution.

And so Publius goes on to discuss in Federalist 51 the structure of the government in regards to checks and balances. He states, “it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.”[14] The importance of each department having its own will is demonstrated in the preceding papers, where Publius demonstrates the likely chances of an encroachment and usurpation by the legislative. In order to achieve this, Publius also states, “It is equally evident that the members of each department should be as little dependent as possible on those of the others for the emoluments annexed to their offices.”[15] Thus the departments must have a will of their own and should not be made dependent on the other departments for their pay. But at the same time Publius argues that the members of the various departments must be given the constitutional means and personal motives to protect against the encroachment of another department on their own.[16] Publius argues, “The interest of the man must be connected with the constitutional rights of the place. It must be a reflection on human nature that such devices should be necessary to control the abuses of government.”[17] However, Publius also reminds the reader that the legislative must be predominant in republics. In order to properly control the legislative against usurpation Publius argues:

The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit.[18]

By dividing the authority of the legislative, a republic is capable of controlling the growth of power and influence of the legislative. Yet this is not enough, as Publius points out it is important in a “compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.”[19] By dividing the legislative, you weaken its ability to encroach on the authority of the other branches. But by dividing the government into two different governments and allotting them different powers a republic can prevent the creation of a tyranny.

However, one question still remains and that is how the different bodies of government are erected for the purposes presented in Federalist 51. The various branches must be provided with different powers so that no one branch can consolidate that power. The branches must also have varying degrees of separation from the people, so that the passions of the majority cannot rule in society. In regards to the legislative branch, the branch should be split into two distinct houses with one having more of a dependence and response to the people than the other. As the legislative branch is closest to the people, and thus lays one of legislative threats, it is proper that it be divided so as to limit this closeness with the people. The first branch of the legislative Publius discusses is thus the House of Representatives, which is designed to be the department most dependent on the people. Publius describes, “As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people.”[20] The House of Representatives will only share in the legislative authority of the government and will be able to respond to the passions of the people while the upper house will be able to filter out the reason. This great authority constitutes a need for a shorter duration of power as Publius states, “It is a received and well-founded maxim that where no other circumstances affect the case, the greater the power is, the great out to be its duration…”[21] Further, the House of Representatives will be watched not only by the people through its direct dependence on them, but also by the collateral branch of the legislative.

Next Publius discusses the Senate, which serves as the connection between the States and the Federal government as directed by the un-amended Constitution.  On this Publius states, “It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems.”[22] So that the States retain some type of authority under the new Constitution, it is important that they be given the authority to appoint the members of the Senate. The advantage of this stands that now law cannot be passed without the consent of both the people and the States.[23] And it also serves as a way to prevent members of the legislative body from forgetting their constituents by requiring the laws to be passed by both distinct bodies. Publius goes on to say:

The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by the factious leaders into intemperate and pernicious resolutions.[24]

The Senate’s mutability is important as well, so that the members restrain their passions and tyrannical nature. By having the Senate elected by the States, the States have their own elections for government offices. By changing the government representatives in the States, the Senate will be apt to change and thus opinions will be changed. Their length of office will allow the Senate the opportunity to learn the laws of the nation as well, and so that they are not constantly changing and that the opinions and measures remain some what consistent.[25] The importance of the Senate within the make up of checks and balances and separation of powers is clear. It serves as a check on the passions of the people, while balancing the representation of the States within the Federal government. Further the two branches of the legislative provide for stability and energy in the new government by removing the passions of the people and allowing for competition within the branches.

Thus next Publius discusses the executive branch, by far the most controversial of the day and most in need of defense by Publius. Publius discusses the mode of electing the President in Federalist 68. As with the legislative, the mode of electing the President must have a way of preventing the passions of the majority from ruling. Thus the Electoral College was devised as a way of preventing the encroachments of the people’s passions from entering into the election of the President. Publius describes, “It was equally desirable that the immediate election should be made by men most capable of analyzing the qualities adapted to the station and acting under circumstances favorable to deliberation.”[26] By doing this the Electoral College is made up of a small number of individuals so that deliberation is permitted in the election of the new President. Publius says, “This process of election affords a moral certainty that the office of the President will seldom fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”[27] As for the proper place of the executive in the stability and energy of government, he is of the most importance. As Publius says, “A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory must be, in practice, a bad government.”[28] The executive must be strong and energetic in order to properly execute the laws he is charged to enforce. Publius calls “united; duration; an adequate provision for its support; and competent powers”[29] to be what constitutes an energetic executive. Energy is found in unity as in a single person the powers of the executive can be carried out quickly without delay. If the executive power were divided among more than one person, it would be subject to deliberation which will prevent an energetic executive. [30] Likewise, the President’s tenure of office is important for his energy. The duration of office is also an important element in the stability of the executive. If he stays too long, then he is apt to be too firm and possibly encroach on the powers of the legislative. Yet if he is tenure is too short then he is apt to fall prey to the legislative.[31] Shortness in the tenure of office is also likely to prevent the interest of the executive from performing his duties. This is also the argument used by Publius in Federalist 72 in regards to the reelection of an executive; by allowing him to run for reelection, he will watch how he acts in office so that the people look upon him favorably.[32] These are the aspects which allow for an energetic and stable executive, without which the government as a whole would lack stability and energy.

Lastly, Publius discusses the importance of the Judiciary in the make up of the new Constitution. Publius calls the Federal judiciary, “the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.”[33] The purpose of the Federal judiciary he proposes is to prevent “the encroachments and oppressions of the representative body.”[34] Publius counters the fears of judicial usurpation by asserting that the Federal judiciary will be the weakest of all the branches as it lacks power over the purse and sword. Publius further argues:

Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.[35]

The Judicial branch will have no authority over the purse or over the sword, but instead only over judgment.[36] It will thus be able to prevent against legislative and executive encroachments by striking down laws which are contrary to the Constitution and the laws and treaties of the United States. The separation of the judicial from the legislative is also important so as to allow the judges to exercise their judgment without fear of reprisal by the legislative branch. Thus, the salaries of the judges cannot be lowered so as not to influence their opinions.[37] Their tenure of office also allows for freedom of judgment in judicial matters. Their appointment is for during good behavior, which prevents their judgment from being dependent on reelection, which may have a negative effect on their opinions. Thus through the judicial department is called upon to be safeguard against the encroachments of the representative and executive bodies. It will further only have the power of judgment, not the power of the purse or the sword. And it will further lack dependence on the legislative branch because their salaries cannot be lowered and their tenure of office is during good behavior, not apt to reelection.

The Federalist lays out a discussion of how energy and stability will be present in the new Constitution without violating the principles of republican government and the liberties of the people. As such, the basic necessity to ensure this requires a separation of powers. Publius describes how the various departments of the new government participate and uphold the principles of the separation of powers. He further demonstrates how the people and States partake in the controlling of the new government by their participation in the election of the houses of the legislative. Publius properly upholds his argument in Federalist 37 in his discussion of the following papers.

[1]Federalist 37, in Alexander Hamilton et al., The Federalist Papers, ed. Clinton Rossiter, introduction and notes by Charles R. Kesler (New York: New American Library, Mentor, 1999), 194.

[2] Federalist 37, 195

[3] Federalist 47, 270

[4] Federalist 47, 271

[5] Federalist 48, 277

[6] “as the legislative department alone has access to the pockets of the people…”Federalist 48, 278

[7] “As the people are the only legitimate fountain of power…” Federalist 49, 281-282

[8] Federalist 49, 284

[9] “The members of the legislative department…” Federalist 49, 284

[10] Federalist 50, 285

[11] Federalist 50, 286

[12] “If the periods be distant from each other…” Federalist 50, 286

[13] “Pennsylvania in 1783 and 1784, was, as we have seen….” Federalist 50, 286

[14] Federalist 51, 289

[15] Federalist 51, 289

[16] “But the great security against a gradual concentration of the several…” Federalist 51, 289

[17] Federalist 51, 290

[18] Federalist 51, 290

[19] Federalist 51, 291

[20] Federalist 52, 295

[21] Federalist 52, 298

[22] Federalist 62, 345

[23] Federalist 62, 346

[24] Federalist 62, 347

[25] “The mutability in the public councils…” Federalist 62, 348

[26] Federalist 68, 380

[27] Federalist 68, 382

[28] Federalist 70, 391

[29] Federalist 70, 392

[30] Federalist 70, 392

[31] “Duration in office has been mentioned…”Federalist 71, 399

[32] “The first is necessary to give the officer himself….” Federalist 72, 404

[33] Federalist 78, 433

[34] Federalist 78, 433

[35] Federalist 78, 433

[36] Federalist 78, 433

[37] Federalist 79, 441


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