ObamaCare and the Constitutional Road Not Taken

The case commonly thought to mark the high water of Commerce Clause power is Wickard v. Filburn, 317 U.S. 111 (1942), in which the Supreme Court upheld wheat production quotas imposed even on a small farmer producing wheat for use on his own farm. Filburn argued his activities were “local” and any effects on interstate commerce were “indirect.” The Court held the indirect effects of local activities could, in the aggregate, have a substantial economic effect on interstate commerce and thus could be regulated under the Commerce Clause. In Gonzales v. Raich, 545 U.S. 1 (2005), the Court relied on Wickard in upholding federal regulation of homegrown medical marijuana, since it might in the aggregate affect the interstate market for it.

ObamaCare would be analogous if Congress had directed Filburn to grow wheat, and everyone to buy wheat products. But it is one thing to regulate the activities of a person engaged in farming (or marijuana production); it is another to make everyone start farming or buy farm products.

Last week President Obama told a town hall that the Eleventh Circuit had “taken sort of the conservative line that this restricts freedom and Congress doesn’t have the authority to do it,” but that if the Supreme Court “follows existing precedent, existing law, it should be upheld without a problem.” But a former professor of constitutional law should have known the constitutionality of ObamaCare cannot be resolved simply by citing Wickard v. Filburn and Gonzales v. Raich.

Congress could have enacted ObamaCare in a constitutional fashion by using its taxing power -- raising employment or income taxes to extend Medicare to everyone. But that was an insuperable political problem, so Congress tried an end run -- making everyone buy a government-designed product from private companies assured of government-mandated customers. It is precisely the unprecedented situation the CBO noted in 1994. ObamaCare is -- as Vice President Biden might have put it -- a “big constitutional deal.”

It is not grounds for recognizing a new federal power that Congress finds it politically difficult to use the power it has -- particularly since, as the Eleventh Circuit noted, the individual mandate has no inherent limiting principle. It could be used not only for ObamaCare but Obamacars, or any other product or service the government decides to mandate. ­­­­­­­­­­­­­­­­­­Nor is ObamaCare’s beneficent purpose a reason to endorse the power, but rather to be wary of it -- as Louis D. Brandeis memorably warned in his dissent in Olmstead v. United States, 277 U.S. 479 (1928):

Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.