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not an advocate for Patient Protection and Affordable Care Act of 2010 and for political reasons I believe it should be repealed.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.



Battle in New York: The Question of the Federal Judiciary

 A simple observation of the Federal court system would beg the question whether our courts are a mere mechanism of the giant leviathan of present-day government, or whether the courts have remained unaffected by changes in government. From the fall of 1787 until the spring of 1788 a battle was waged in New York between two factions: the Federalist and the Anti-Federalist. The Federalists were led by the magnanimous Publius and the Anti-Federalists were led by Brutus. Their discussions on the Federal judiciary are the most important carried out between Publius and Brutus. It appears that neither of them had a firm grasp of the Federal judiciary and the possible outcome of the power granted to this branch of government. Two-hundred years after the discussions were held, in America we are left with what appears to be a corruption of the then proposed Federal judiciary as Brutus predicted, but also a Federal judiciary that Publius in many aspects predicted would develop.

            In order to properly evaluate the arguments made by both Publius and Brutus we must begin our observation from the question of the nature and extent of judicial power and whether it poses any threat to the other two branches. We shall also observe the discussion between Brutus and Publius concerning the other matters in which the Federal judiciary holds authority and their relation to the extent of judicial power.

            What is the nature of the power granted to the Federal judiciary by the Constitution of 1787? Article III of the Constitution is a scant three sections long, by far the shortest article of the Constitution that deals with the branches of government. Concerning the direct power granted to the Federal judiciary the Constitution says, “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.”[1] Despite the scant manner in which the Constitution outlines the powers granted to the Federal judiciary, Publius and Brutus spend an enormous amount of time devoted to this very question. 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.”[2]  The purpose of the Federal judiciary he proposes is to prevent “the encroachments and oppressions of the representative body.”[3]  One can see that this has been the case on a number of occasions throughout American legal history, most specifically during the New Deal. But for many in the fall of 1787 the ability of the Federal judiciary to prevent these encroachments was further from their minds as to the power of the Federal judiciary. Publius once again counters these fears 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. [4]

 Brutus attempts to refute this argument made by Publius, asserting that this Federal judiciary will not be a protector and defender of our rights but instead will be just as apt to destroy them as either of the other branches.

            The main authority granted to the Federal judiciary according to Publius and Brutus is the power to strict down laws that are not made in pursuit of the Constitution of the United States. This is the point of contention for Brutus, for he believes that this power alone will give the courts unfettered access to destroy the rights of the people.[5] That the Federal courts will attempt to use their authority to strike down laws to bring it more power is not an unintelligent argument made by Brutus. In fact, it is the better argument made by the two authors. The last half century has seen an attempt by the courts to usurp their constitutionally appointed authority and the authority of both the legislative and executive branches. Brutus also asserts, “This power in the judicial will enable them to mould the government, into almost any shape they please.”[6] Clearly Brutus believes that the meek department of the Federal judiciary argued by Publius is not at all the true nature in which the courts will possess. The notion that the Federal courts will simply attempt to ascertain the meaning of the Constitution and to prevent the encroachment of the legislative power on that of the people held true until the latter half of the twentieth century, when what Brutus predicted came to fruition.

            Next shall be the question of the other powers of the Federal judiciary granted by the Constitution of 1787. Brutus’ main point of contention with these other powers can be summed up in these words, “For, I conceive that the judicial power should be commensurate with the legislative. Or, in other words, the supreme court should have authority to determine questions arising under the laws of the union.”[7] He contends that the Federal judiciary may not have the power to declare what the powers of the legislative branch are, but to merely declare acts of the legislative unconstitutional.[8] When it comes to treaties, Brutus holds that the Federal judiciary may play a role if the treaty in question harms the rights of individual citizens. However to declare the intentions, meaning or nature of the treaty is a power that Brutus wishes not to see in the hands of the Federal judiciary. As Brutus states:

For as treaties will be the law of the land, ever power who have rights or privileges secured by treaty, will have aid of the courts of law, in recovering them. But I do not understand, what is meant by equity arising under a treaty. I presume every right which can be claimed under a treaty, must be claimed by virtue of some article or clause contained in it, which gives the right in plain and obvious words; or at least, I conceive, that the rules for explaining treaties, are so well ascertained, that there is no need of having recourse to an equitable construction. If under this power, the courts are to explain treaties, according to what they conceive their spirit, which is not less than a power to give them whatever extension they may judge proper, it is a dangerous and improper power.[9]

Likewise, Brutus is against the provisions of the Constitution granting jurisdiction of the Federal judiciary to matters stemming from a state and a citizen of another state.[10] Brutus argues, “It is improper, because it subjects a state to answer in a court of law, to the suit of an individual. This is humiliating and degrading to a government, and, what I believe, the supreme authority of no state ever submitted to.”[11] This argument by Brutus is horrible; to assert that the source of government’s power ought not to have the authority to reign in it under a court of law is ludicrous. He goes on to argue:

The evil consequences that will flow from the exercise of this power, will best appear by tracing it in its operation. The constitution does not direct the mode in which an individual shall commence a suit against a state or the manner in which the judgement of the court shall be carried into execution, but it gives the legislature full power to pass all laws which shall be proper and necessary for the purpose. And they certainly must make provision for these purposes, or otherwise the power of the judicial will be nugatory. [12]

 Brutus’ argument is not totally unfounded though, as he fears that citizens of one state will attempt to prevent another state from operating properly. Brutus uses the example of the debts owed by the states to their citizens. He believes that the notes given by the states to their citizens can get into the hands of a citizen of another state, allowing for that citizen to take the state to court in order to recoup the money owed them. Long story short, Brutus asserts this will cause the states to go bankrupt and ultimately make them submit to the Federal government.[13]

            Publius on the other hand argues that the authority granted to the Federal judiciary to handle cases in regard to treaties as totally legitimate. He states:

As the denial or the perversion of justice by the sentences of courts, as well as in any other manner, is with reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned. This is not less essential to the preservation of the public faith than to the security of the public tranquility.[14]

 Publius is fearful that a foreign nation will take offense if a citizen of their country is sentenced to serve time in another nation. This would certainly cause a breach of public safety, if that other nation wished to wage war or institute other means of punishing them. The ability of the Federal judiciary to oversee matters concerning cases in which treaties are concerned is certainly a matter that Publius thinks need not be contested. If the commonwealth of Massachusetts were to convict a man from France for a crime, it would fall under the Union as a whole to protect the commonwealth from repercussions by the sovereign nation of France. As to the issue concerning one state and the citizen of another, Publius wholly disagrees with Brutus’ assessment. Publius states, “The power of determining causes between two States, or between one State and the citizens of another, and between the citizens of different States, is perhaps no less essential to the peace of the Union than that which has been just examined.”[15] If two states were to enter into disagreement over any trivial matter, it could result in a private war between the two states and possibility of a civil war throughout the whole country. For the Federal government to assert itself into matters between two states or between the citizens of one state against another state is for the protection of the peace and public safety of the whole country. Furthermore, Publius argues, “No man ought certainly to be judge in his own cause, or in any cause in respect to which he has the least interest or bias.”[16] Under this assertion, Publius believes that the Federal judiciary ought to be given authority over such matters as the impartial judge.

            Clearly it can be seen that both Brutus and Publius were passionate about the subject of the Federal judiciary. Neither men make arguments that are clearly accurate, however that at times both men seem to have the better argument over the other. Brutus’ contention is that the power to rule laws unconstitutional may in fact allow for the Federal judiciary to usurp the authority of the other two branches. However, Publius wins the argument when it comes to matters of treaties and matters arising from the various states. It is based on these observations that it cannot be said that the Federal judiciary has become a mechanism for the leviathan of present-day government. But that it has in many ways remained the vision of Publius, as the impartial protector of individual rights against the usurpation of the Federal and state governments, albeit at times it has come dangerously close to losing itself in the leviathan.

[1]Kesler, Charles R., ed. The Federalist Papers.
[2]Article III Section II of the U.S. Constitution of 1787.

[3]Kesler, Charles R., ed. The Federalist Papers. Federalist #78

 [4]Kesler, Charles R., ed. The Federalist Papers. Federalist #78

 [5]Kesler, Charles R., ed. The Federalist Papers. Federalist #78

 [6]“From these considerations the judges will be interested to extend the powers of the courts, and to construe the constitution as much as possible, in such a way as to favour it; and that they will do it appears probable.” – Storing, Herbert J., ed. The Anti-Federalist: Writings by the Opponents of the Constitution Brutus’ Essay number XI.

[7]Storing, Herbert J., ed. The Anti-Federalist: Writings by the Opponents of the Constitution Brutus’ Essay number XI

 [8]Storing, Herbert J., ed. The Anti-Federalist: Writings by the Opponents of the Constitution Brutus’ Essay number XIII

[9]Storing, Herbert J., ed. The Anti-Federalist: Writings by the Opponents of the Constitution Brutus’ Essay number XIII

 [10]Storing, Herbert J., ed. The Anti-Federalist: Writings by the Opponents of the Constitution Brutus’ Essay number XIII

 [11]Storing, Herbert J., ed. The Anti-Federalist: Writings by the Opponents of the Constitution Brutus’ Essay number XIII

[12]Storing, Herbert J., ed. The Anti-Federalist: Writings by the Opponents of the Constitution.  Brutus’ Essay number XIII

 [13]Storing, Herbert J., ed. The Anti-Federalist: Writings by the Opponents of the Constitution Brutus’ Essay number XIII

 [14]Kesler, Charles R., ed. The Federalist Papers. Federalist #80

 [15]Kesler, Charles R., ed. The Federalist Papers. Federalist #80

 [16]Kesler, Charles R., ed. The Federalist Papers. Federalist #80


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