Last week, the Sixth Circuit upheld the constitutionality of ObamaCare in a 2-1 decision, producing three opinions running a total of 64 pages. To understand the issues fully, you also need to read Judge Roger Vinson’s erudite 78-page opinion holding ObamaCare unconstitutional. Or you could watch this fascinating debate at Harvard featuring three of America’s best constitutional lawyers.
But there is an even quicker way to focus on the central constitutional issue: read the panel discussion from Sunday’s This Week, in which George Will posed a challenge that none of his fellow panelists could meet.
Will asked them a question to test if they thought there is any significant limitation on congressional power under the Commerce Clause:
WILL: … Let me ask the three of you. Obviously, obesity and its costs affect interstate commerce. Does Congress have the constitutional power to require obese people to sign up for Weight Watchers? If not, why not?
First up was Richard Stengel, editor-in-chief of Time magazine, whose cover story about the Constitution the prior week was titled “Does It Still Matter?” Here is the key part of his answer:
STENGEL: … Everything having to do with health care does cross state boundaries. Even that notion of the Commerce Clause as regulating among the states is a kind of antiquarian idea. The government can ask you to do things. … It asks us to pay our taxes. It asks us to register for the draft. It asks us to buy car insurance if we want to drive our car around. … It’s unconstitutional if the Supreme Court decides it’s unconstitutional. …
WILL: Well, does Congress have the power to mandate that obese people sign up for — do they have the power to do this?
STENGEL: I don’t know the answer to that.
Georgetown Professor Michael Eric Dyson then gave a convoluted response supporting Stengel’s non-answer. That produced this colloquy, set forth below in full:
WILL: Is that a yes, Congress does have the power to mandate?
DYSON: It’s open. If they decide that they will, they will have the power to do so.
Next was Harvard Professor Jill Lepore, author of The Whites of Their Eyes: The Tea Party’s Revolution and the Battle over American History (a book that, according to its jacket, describes the current tea party’s “narrative” as a “fable” that is “anti-intellectual, anti-historical, and dangerously anti-pluralist.”) She confused the Commerce Clause with the First Amendment:
LEPORE: Can I just sort of offer up a sort of a slightly different vantage on this question, because I think it’s an important one. But I think, again, just sort of sound the note again, that this debate is what the Constitution is about. Right? We can have this debate. This is evidence that the Constitution is working.
So the Constitution is working — but none of the three panelists could answer whether the six word provision giving Congress the power to “regulate commerce . . . among the several states” means it can require obese people to sign up for Weight Watchers. The editor/author said he did not know; one professor said the answer is whatever the Supreme Court says it is; the other said it was great we are having this debate.
The whirring sound you could hear in the background was the Founders spinning.
Will’s question was a modified “Broccoli Mandate” query: if Congress can mandate every individual to purchase health insurance, can it also mandate that people eat broccoli, or join a health club? The answer to that question given earlier this year by U. C. Irvine Law School Dean Erwin Chemerinsky was that Congress could make people buy cars but “what people choose to eat well might be regarded as a personal liberty” beyond Congress’s power. See reason.tv, “Wheat, Weed, and Obamacare: How the Commerce Clause Made Congress All-Powerful.”
Chemerinsky’s answer highlights the difference between liberals and conservatives. Liberals favor expanded federal power to direct society toward good things and if government goes too far — directing us what to eat — some judge, searching through the penumbras of the Constitution will surely create a right not to eat broccoli. Conservatives believe freedom lies in limiting government to its enumerated powers. The right not to eat broccoli (and to decide whether to join Weight Watchers) comes not from beneficent judges but from the limitations inherent in the language of the Commerce Clause.
The Sixth Circuit majority relied heavily on its assertion that the health care market is unique, implicitly treating ObamaCare as a one-off constitutional issue. But once the individual mandate becomes part of Congress’s power to regulate commerce it is hard to see how it will not be used elsewhere as the occasion arises.
On Monday, the New York Times reported in a front-page story that the Obama administration and the auto industry are “locked in negotiations over new vehicle mileage and emissions standards that will have a profound effect on the cars Americans drive and the health of the auto industry over the next decade and beyond.” Obama wants new cars and trucks to average 56 miles per gallon with increases in fuel efficiency starting in 2017. The problem is not technical but economic and political.
The automakers say the standard is technically achievable. But they warn that it will cost billions of dollars to develop the vehicles and they express doubt that consumers will accept the smaller, lighter — and in some cases, more expensive — cars that result.
Perhaps the answer is an Individual Car Mandate. Once the constitutionality of the individual mandate has been established the problem of costs and customers will disappear in other areas as well. Like the insurance companies who did not effectively oppose ObamaCare once they were assured of millions of new mandatory customers to cover their costs the car companies will undoubtedly be reassured if there is an individual mandate on people to buy their cars. Most industries will produce whatever the government wants as long as politicians assure them people will have to buy it whether they like it or not.
In 2010, Obama informed Massachusetts voters that “everybody can buy a truck.” Earlier this year he advised those concerned about high gas prices to trade in their vans for new ones with better mileage. If Congress can impose an individual car mandate the decision on buying an ObamaCar may not be an individual one since a mandate may be required for them to work.
It seems doubtful the Founders thought the six-word grant of power in the Commerce Clause would be used in this fashion and it is troubling that two distinguished professors and an editor of a national magazine were unable to answer Will’s question about Weight Watchers. They could not, in other words, articulate where the principle – once established – might stop. Perhaps, like the Sixth Circuit, they were simply unwilling to acknowledge where their position will take us.