It’s Not the Supreme Court, Stupid!

On ABC’s This Week, after ObamaCare ran into a “trainwreck” in the Supreme Court, former Obama administration official Van Jones described the law as a last-resort effort to prevent Americans from dying. Since the pitch previews how President Obama hopes to spin a possible loss at the Supreme Court, it is worth considering it further. Jones said:

[I]t’s so amazing to hear the Republican Party now cheerleading for the free loaders. Listen, if you dive-bomb yourself into an emergency room, don’t worry about it, taxpayers will pay for it. We have no — there’s nothing we can do to make sure that people pay on the front end.

Now, listen, you have people on the left who have been saying the whole time, let’s go with Medicare for everyone. They said no, that’s too much government. So we said fine. We’ll go with individual responsibility … and now that doesn’t work. What does that mean? That means we’re going to be going back to a system [we have] right now. …

But what I don’t understand is what does the Republican Party want here? If we can’t have single payer, we can’t have a public option, and we can’t have individual responsibility, what we’re going to have here is more Americans dying. [Emphasis added].

James Carville pitched the same theme with his gift for slogans: “go see Scalia when you want health care.”

The Jones statement is a false narrative of the legislative process that led to ObamaCare, and a false prediction of the outcome of an adverse Supreme Court decision. Jones is correct that the administration could have gone with “Medicare for Everyone,” but in 2009 such a program could not pass even a Congress completely controlled by the Democratic Party. The problem centered on Democrats who knew they would have to stand for election in about a year.

The reason “Medicare for Everyone” was rejected was not simply that it was considered “too much government.” It was because everyone knew Medicare itself is financially unstable, and expanding it to cover not only people 65 or older, but everyone in the country for their first 64 years as well, would have involved astronomical tax increases and/or astronomical new borrowing. Even with complete control of Congress, Democrats did not dare go with such an approach. Pitching ObamaCare as “Medicare for Everyone” was a political non-starter — as was a “public option” the public knew would turn into the same thing.

Obama’s alternative was not “individual responsibility,” but a government mandate compelling purchases of policies from insurance companies unable to decline risks or limit benefits, with health care to be micro-managed by an unelected board in Washington, deciding everything from end-of-life care to contraceptives for students. The program was styled as a regulation of commerce, but it was really the creation of a new governmental program with every person in the country required to participate.

The Congressional Budget Office noted that an individual mandate “would be an unprecedented form of federal action” since the government “has never required people to buy any good or service as a condition of lawful residence in the United States.” The Eleventh Circuit, in a 207-page opinion jointly-written by Democratic and Republican appointees, also found the individual mandate “unprecedented.”

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.

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