What happens to a Republic under a written Constitution if a majority of the Supreme Court, which is empowered to interpret that Constitution, goes rogue? What if the court’s majority simply ignores the wording of the founding document and makes up the law to serve some partisan end? Does that, in effect, turn the country into a lawless state where raw power can muscle aside the democratic process?
Chief Justice John Roberts
Something very much like that could be happening if the Supreme Court’s five Republicans continue on their apparent path to strike down the individual mandate at the heart of the Affordable Care Act. In doing so, they will be rewriting the Constitution’s key Commerce Clause and thus reshaping America’s system of government by fiat, rather than by the prescribed method of making such changes through the amendment process.
And the word “regulate” means today what it meant then, as was noted in a Nov. 8, 2011, ruling written by Judge Laurence Silberman, a senior judge on the U.S. Court of Appeals for the District of Columbia Circuit, a conservative appointee of President Ronald Reagan.The plain text of the Commerce Clause – Article 1, Section 8, Clause 3 – is so straightforward that a middle-school child should be able to understand it. Here it is: “Congress shall have Power… to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
In upholding the individual mandate as constitutional, Silberman wrote: “At the time the Constitution was fashioned, to ‘regulate’ meant, as it does now, ‘[t]o adjust by rule or method,’ as well as ‘[t]o direct.’ To ‘direct,’ in turn, included ‘[t]o prescribe certain measure[s]; to mark out a certain course,’ and ‘[t]o order; to command.’ In other words, to ‘regulate’ can mean to require action.”
So, for the individual mandate to clear the Commerce Clause hurdle it must be a regulation of commerce among the states. Everyone agrees that health care and health insurance are interstate markets. Check. Everyone also agrees that health care and health insurance are commerce. Check. There’s also no dispute that the individual mandate is a form of regulation. Check.
Judge Silberman went through the same check list and concluded that there was “no textual support” in the Constitution for striking down the individual mandate because the word “regulate” has always included the power to compel people to act.
But the law’s opponents insist that the individual mandate is a unique and improper form of regulation because it forces an American to do something that the person might not want to do it, i.e. go into the private market and buy health insurance.
Yet, in other enumerated powers, this idea of Congress having the power to compel people to act is widely accepted. Take, for example, the draft. While there is not currently a draft, there has been at many points in U.S. history and even now every male citizen, when he turns 18, is required to register for selective service. And, should the draft come back and should you get drafted, you would be legally compelled to serve.
If compelling individuals to risk their lives in war is an accepted use of congressional authority, it is hard to see the logic in striking down the power of Congress to compel individuals to get health insurance.
Washington and Madison
And, despite what the Affordable Care Act’s critics have said repeatedly, this is not the first time the federal government has ordered Americans to buy a private product.
Indeed, just four years after the Constitution’s ratification, the second U.S. Congress passed the Militia Acts of 1792, which were signed into law by President George Washington. The militia law ordered white men of fighting age to arm themselves with a musket, bayonet and belt, two spare flints, a cartridge box with 24 bullets and a knapsack so they could participate in militias.
If one wants to gauge whether a mandate to buy a private product violates the original intent of the Framers, one probably can’t do better than applying the thinking of George Washington, who presided at the Constitutional Convention in 1787, and James Madison, the Constitution’s architect who served in the Second Congress and argued for the militia law. [For more, see Consortiumnews.com’s “Madison: Father of the Commerce Clause.”]
So, it would seem to be a rather clear-cut constitutional case. Whether one likes the Affordable Care Act or not, it appears to fall well within the Constitution and historical precedents. By the way, that’s also the view of Ronald Reagan’s Solicitor General Charles Fried who said this in a March 28 interview:
“Now, is it within the power of Congress? Well, the power of Congress is to regulate interstate commerce. Is health care commerce among the states? Nobody except maybe Clarence Thomas doubts that. So health care is interstate commerce. Is this a regulation of it? Yes. End of story.”
However, if Chief Justice John Roberts and the Court’s four other Republicans go in the direction they signaled during oral arguments and strike down the individual mandate, they will not merely be making minor clarifications to the noun “commerce” and the adjective “interstate” — as the Court has done previously — but they will be revising the definition of the verb “regulate” and thus substantially editing the Constitution.
Amendment Process
When it comes to editing the Constitution, there is a detailed process spelled out for how you do that. It’s in Article 5 of the Constitution and it’s called the amendment process – something in which the Judicial Branch plays absolutely no role. The process for revising the founding document requires votes by two-thirds of both the House and the Senate and the approval of three-quarters of the states.
Besides representing an affront to the nation’s constitutional system, an end-run by a narrow majority of the Supreme Court taking upon itself to rewrite an important section of the Constitution would drastically alter the balance among the three branches of government.
Such an action would fly in the face of the longstanding principle in constitutional cases that the Supreme Court should give deference to legislation passed by the government’s Legislative Branch and signed into law by the President as chief of the Executive Branch. Under that tradition, the Judicial Branch starts with the assumption that the other two branches have acted constitutionally.
The burden of proof, therefore, should not be on the government to prove that the Constitution permits a law – but rather on the plaintiffs to demonstrate how a law is unconstitutional.
Yet, during oral arguments this week, Republican justices pressed the government to prove that the Affordable Care Act was constitutional and even demanded that Solicitor General Donald B. Verrilli Jr. put forward a limiting principle to the Commerce Clause – to speculate about what couldn’t be done under that power.
Justice Anthony Kennedy several times raised the point that the individual mandate changes the relationship between citizens and the federal government in, as he put it, “fundamental ways” and thus the government needed to offer a powerful justification. In his questions, however, it was not entirely clear why Kennedy thought this, given the fact that Congress has previously enacted many mandates, including requirements to contribute money to Social Security and Medicare.
In the March 28 interview, former Solicitor General Fried took issue with Kennedy’s question about this “fundamental” change, calling the line “an appalling piece of phony rhetoric” and dismissing it as “Kennedy’s Tea Party-like argument.”
Fried noted that Social Security in the 1930s and Medicare in the 1960s indeed were major changes in the relationship between the government and the citizenry, “but this? This is simply a rounding out in a particular area of a relation between the citizen and the government that’s been around for 70 years.”
On policy substance as well as on constitutional principle, Fried was baffled by the Republican justices’ opposition to the law, saying: “I’ve never understood why regulating by making people go buy something is somehow more intrusive than regulating by making them pay taxes and then giving it to them. I don’t get it.”
A Noble Rationale
But Kennedy seemed to be fishing for some noble-sounding rationale for striking down the individual mandate. He was backed up by Justice Antonin Scalia who proffered the peculiar argument that if Congress could mandate the purchase of health care, why couldn’t it require people to buy broccoli – as if any outlandish hypothetical regarding congressional use of the Commerce Clause disqualifies all uses of the Commerce Clause.
This line of reasoning by the Republican justices also ignored the point that the Court’s role is not to conjure up reasons to strike down a law, but rather to make a straightforward assessment of whether the individual mandate represents a regulation of interstate commerce and is thus constitutional.
In searching for a rationale to strike down the law, the Court’s Republicans also ignored the true limiting principle of any act of Congress – the ballot box. If any congressional majority were crazy enough to mandate the purchase of broccoli, the voters could throw that bunch out and vote in representatives who could then reverse the law.
In the case of the Affordable Care Act, Democrats won Election 2008, in part, because they promised the voters to tackle the crisis in U.S. health care. If the voters don’t like what was done, they can vote the Democrats out of office in November. The pendulum of democracy can always undo or modify any law through legislative action.
However, what the Republican majority on the Supreme Court seems to be angling toward is a radical change in the longstanding principles behind the Constitution’s checks and balances. The five justices would bestow upon themselves the power to not only undo legislation, which has been lawfully enacted by Congress and signed by the President, but to rewrite the founding document itself.
© 2012 Consortium News
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Sam Parry is co-author of Neck Deep: The Disastrous Presidency of George W. Bush. He has worked in the environmental movement, including as a grassroots organizer, communications associate, and on the Sierra Club’s and Amnesty International’s joint Human Rights and the Environment campaign. He currently works for Environmental Defense Fund.
Yesterday, Congressman Eric Massa (D-NY), a lead single payer advocate in the House, said he would vote against Obamacare.
The Real Health Care Debate April 9, 2012
Posted by rogerhollander in Health.Tags: affordable care, big pharma, chris hedges, constitution, health, health care, heritage foundation, individual mandate, insurance industry, massachusetts health, medicare, medicare-for-all, mitt romney, obamacare, pharmaceutical industry, roger hollander, single payer, universal health
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The debate surrounding the Patient Protection and Affordable Care Act illustrates the impoverishment of our political life. Here is a law that had its origin in the right-wing Heritage Foundation, was first put into practice in 2006 in Massachusetts by then-Gov. Mitt Romney and was solidified into federal law after corporate lobbyists wrote legislation with more than 2,000 pages. It is a law that forces American citizens to buy a deeply defective product from private insurance companies. It is a law that is the equivalent of the bank bailout bill—some $447 billion in subsidies for insurance interests alone—for the pharmaceutical and insurance industries. It is a law that is unconstitutional. And it is a law by which President Barack Obama, and his corporate backers, extinguished the possibilities of both the public option and Medicare for all Americans. There is no substantial difference between Obamacare and Romneycare. There is no substantial difference between Obama and Romney. They are abject servants of the corporate state. And if you vote for one you vote for the other.
But you would never know this by listening to the Democratic Party and the advocacy groups that purport to support universal health care but seem more intent on re-electing Obama. It is the very sad legacy of the liberal class that it proves in election cycle after election cycle that it espouses moral and political positions it will not pay a price to defend. And since we have no fight in us, since we will not punish politicians like Obama who betray our core beliefs, the corporate juggernaut rolls forward with its inexorable pace to cement into place our global neofeudalism.
Protesting outside the Supreme Court recently as it heard arguments on the constitutionality of the Affordable Care Act were both conservatives from Americans for Prosperity who denounced the president as a socialist and demonstrators from Democratic front groups such as the SEIU and the Families USA health care consumer group who chanted “Protect the law!” Lost between these two factions were a few stalwarts who hold quite different views, including public health care advocates Dr. Margaret Flowers, Dr. Carol Paris and attorneys Oliver Hall, Kevin Zeese and Russell Mokhiber. They displayed a banner that read: “Single Payer Now! Strike Down the Obama Mandate!” They, at least, have not relinquished the demand for single payer health care for all Americans. And I throw my lot in with these renegades, dismissed, no doubt, as cranks or dreamers or impractical by those who flee into the embrace of empty political theater and junk politics. These single payer advocates, joined by 50 doctors, filed a brief to the court that challenges, in the name of universal health care, the individual mandate.
“We have the solution, we have the resources and we have the money to provide lifelong, comprehensive, high-quality health care to every person,” Dr. Flowers said when we spoke a few days ago in Washington, D.C. Many Americans have not accepted the single payer approach “because people get confused by the politics,” she said. “People accept the Democratic argument that this [Obamacare] is all we can have or this is something we can build on.”
“If you are trying to meet the goal of universal health coverage and the only way to meet that goal is to force people to purchase private insurance, then you might consider that it is constitutional,” Flowers said. “Our argument is that the individual mandate does not meet the goal of universality. When you attempt to use the individual mandate and expansion of Medicaid for coverage, only about half of the uninsured gain coverage. This is what we have seen in Massachusetts. We do, however, have systems in the United States that could meet the goal of universality. That would be either a Veterans Administration type system, which is a socialized system run by the government, or a Medicare type system, a single payer, publicly financed health care system. If the U.S. Congress had considered an evidence-based approach to health reform instead of writing a bill that funnels more wealth to insurance companies that deny and restrict care, it would have been a no-brainer to adopt a single payer health system much like our own Medicare. We are already spending enough on health care in this country to provide high-quality, universal, comprehensive, lifelong health care. All the data point to a single payer system as the only way to accomplish this and control health care costs.”
Obamacare will, according to figures compiled by Physicians for a National Health Plan (PNHP), leave at least 23 million people without insurance, a figure that translates into an estimated 23,000 unnecessary deaths a year among people who cannot afford care. Costs will continue to climb. There are no caps on premiums, including for people with “pre-existing conditions.” The elderly can be charged three times the rates provided to the young. Companies with predominantly female workforces can be charged higher gender-based rates. Most of us will soon be paying about 10 percent of our annual incomes to buy commercial health insurance, although this coverage will pay for only about 70 percent of our medical expenses. And those of us who become seriously ill, lose our incomes and cannot pay the skyrocketing premiums are likely to be denied coverage. The dizzying array of loopholes in the law—written in by insurance and pharmaceutical lobbyists—means, in essence, that the healthy will receive insurance while the sick and chronically ill will be priced out of the market.
Medical bills already lead to 62 percent of personal bankruptcies, and nearly 80 percent of those declaring personal bankruptcy because of medical costs had insurance. The U.S. spends twice as much per capita on health care as other industrialized nations, $8,160. Private insurance bureaucracy and paperwork consume 31 percent of every health care dollar. Streamlining payment through a single, nonprofit payer would save more than $400 billion per year, enough, the PNHP estimates, to provide comprehensive, high-quality coverage for all Americans.
But as long as corporations determine policy, as long as they can use their money to determine who gets elected and what legislation gets passed, we remain hostages. It matters little in our corporate state that nearly two-thirds of the public wants single payer and that it is backed by 59 percent of doctors. Public debates on the Obama health care reform, controlled by corporate dollars, ruthlessly silence those who support single payer. The Senate Finance Committee, chaired by Max Baucus, a politician who gets more than 80 percent of his campaign contributions from outside his home state of Montana, locked out of the Affordable Care Act hearing a number of public health care advocates including Dr. Flowers and Dr. Paris; the two physicians and six other activists were arrested and taken away. Baucus had invited 41 people to testify. None backed single payer. Those who testified included contributors who had given a total of more than $3 million to committee members for their political campaigns.
“It is not necessary to force Americans to buy private health insurance to achieve universal coverage,” said Russell Mokhiber of Single Payer Action. “There is a proven alternative that Congress didn’t seriously consider, and that alternative is a single payer national health insurance system. Congress could have taken seriously evidence presented by these single payer medical doctors that a single payer system is the only way to both control costs and cover everyone.”
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Chris Hedges writes a regular column for Truthdig.com. Hedges graduated from Harvard Divinity School and was for nearly two decades a foreign correspondent for The New York Times. He is the author of many books, including: War Is A Force That Gives Us Meaning, What Every Person Should Know About War, and American Fascists: The Christian Right and the War on America. His most recent book is Empire of Illusion: The End of Literacy and the Triumph of Spectacle.