Despite former professor Obama’s assurance that “in accordance with precedent out there, it’s constitutional,” ObamaCare went significantly beyond existing case law. The high water mark of Commerce Clause power was set by Wickard v. Filburn (1942), upholding production quotas on a local farmer producing wheat for use on his own farm, on grounds such local activities could, in the aggregate, affect interstate commerce. But it is one thing to regulate the activities of a farmer engaged in farming; it is another to mandate that every person buy wheat products.
Former law professor Barack Obama said it would be “unprecedented” for a Court to act as “an unelected group of people [who] would somehow overturn a duly constituted and passed law” – a shameful assertion that would get a first-year law student kicked out of class the first week. A law student who thought Wickard controls the issue in ObamaCare would be gone shortly thereafter. The government can regulate the production of Wheaties; but mandating that every person buy it, on grounds that we’re all in the market for food, is a different proposition.
Moreover, at this point virtually everyone — including the Supreme Court justice who is the leading champion of a “living” Constitution — acknowledges that if ObamaCare is upheld, there is no “limiting principle” that would restrict the individual mandate to one kind of commerce. If Congress can require everyone to buy health insurance, there is no principled reason Congress cannot require everyone to buy anything else.
Congress is not likely to mandate that everyone buy broccoli (or Wheaties), although there would be no constitutional reason why it couldn’t. Less hypothetical would be mandated purchases of Chevy Volts, or Treasury bonds as part of everyone’s individual retirement portfolio, or green products sold by companies like Solyndra. It is a short step from ObamaCare to ObamaCars and beyond, with no constitutional limitation to stop the movement.
A lopsided majority of likely voters opposed ObamaCare the month it passed and has opposed it every month since; currently 56 percent want it repealed. It was hyper-partisan legislation, passed in a hyper-partisan manner, voted on by legislators who, like the rest of us, only found out what was in it after it passed. It is not clear a Supreme Court decision overturning it would be unpopular, particularly since the Court would not preclude Congress from addressing health care by other means (and there are a lot of other means).
If the Supreme Court upholds ObamaCare, a principal issue in November will be which candidate will be willing to sign legislation repealing it. If the Court holds it unconstitutional, a principal issue will be what should replace it. The result will not be, as Van Jones suggested, “going back to a system [we have] right now,” but rather a requirement that Congress produce, out in the open, a system that will command majority support among the public and observe constitutional limitations.
President Obama will blame the Supreme Court for his problems, but it is he who created the constitutional mess in which we are now embroiled. The Court is not the problem. Perhaps the Republicans can think of a slogan to get that point across.