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On the Obamacare decision and enumerated powers

The reasons the Supreme Court gave for upholding Obamacare are tenuous at best.  It’s another reason why enumerated powers are a bad idea.

It is no exaggeration to say that the President Obama’s health reforms survived by the skin of their teeth.  Liberals hailing the Supreme Court’s decision should bear that in mind.  Not only were the justices divided 5–4 on whether to uphold the Patient Protection and Affordable Care Act (ACA), they rejected (5–4) the government’s main defence: that it was allowed under the Commerce Clause.

The ACA was saved only when Chief Justice Roberts was willing to interpret the “penalty” under the individual mandate as a “tax”.  In doing so, he joined the four liberal justices who (unlike him) did accept the Commerce Clause argument, to deliver Mr Obama his victory and a huge sigh of relief.

The Chief Justice went to great pains to justify his swing.  Construing the individual mandate as a tax is testy because the ACA doesn’t describe it as one.  The minority in their joint dissent refused to do so, saying that “we cannot rewrite the statute to be what it is not.”  But the Chief Justice cited an 1895 case which held that “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality”.  He then applied the duck test, giving a full seven pages of analysis about whether the “penalty” looks and quacks enough like a “tax” to be a tax.  His conclusion: it was, so is allowed under the Taxing Clause.

I agree with the Chief Justice, but have to admit it’s a long stretch for justification.  It could just as easily—and reasonably—have gone the other way.  Many commentators have gone as far to suggest that the Chief Justice may have originally voted to strike down the law, then changed his mind last minute.  Any Obamacare supporter who feels vindicated by the decision should think again.

Good policy? Who cares
The court, of course, doesn’t ask whether it’s good policy.  Its job is—only—to decide whether the law is permitted by the constitution.  If it’s not, no matter how laudable the policy, it must invalidate the law.  That should be enough to raise eyebrows about the system.

Further, America’s constitution is fiercely prescriptive.  By default, Congress has no power, unless the constitution expressly authorises it.  So the federal government has to justify everything it wants to do under the enumerated powers section (which allows, among other things, for Congress to “establish Post Offices”).  This was written in 1787.  The courts have construed the powers broadly, but not without limits.

But it’s fact that the question matters in the first place that makes enumerated powers a bad idea.  Time and time again, when it comes to controversial policies, America is consumed by whether something is constitutional.  Opponents to a policy argue “it’s unconstitutional” as if that automatically proves “it’s bad”.  Liberals and conservatives are both guilty of this: consider the opposition in California to banning gay marriage last year.

Just as “constitutional” doesn’t mean “good”, “unconstitutional” doesn’t mean “bad”.  This isn’t to say America’s citizens don’t debate the merits of policy.  They do, for sure.  But they’d do that better if they weren’t fussing about what the Framers of 1787 would have wanted.  By enumerating federal powers, America’s constitution denies its own people the ability to make its own decisions by electing politicians who can do what they campaigned for.

It shouldn’t matter if it’s a duck
The Affordable Care Act should never have come down to the fiddly question of whether or not it’s a “tax”.  The only barrier standing in its way should have been convincing the legislature—for whatever reasons—that it’s the right thing to do.  We can be relieved that five justices decided to stay out of the way this time.  But it was breathtakingly close.  It should not breed confidence in America’s system of judicial review.

2 Comments Post a comment
  1. Yes it seems that re- interpretating constitutional ideals so the state may enact policy for the public good, is stymied by an interpretation based on a reactionary individualism that had its day once, but is no longer desirable, notably for the working poor, and those on public welfare. Ironically, the constitution has become the bain of these individuals – America’s “tired, poor, huddled masses, and wretched refuse”, and the crock of (arguably) their exploiters – the consuming classes, rich and super rich.

    17 November 2013

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