JUSTICE SCALIA: ….And we’ve held in two cases that something that was reasonably adapted was not proper [the necessary and proper wording of the Commerce Clause] because it violated the sovereignty of the States, which was implicit in the constitutional structure. The argument here is that it may be necessary, but it’s not proper because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers. And that’s what all this questioning has been about. What – what is left? If the government can do this, what else can it not do? [pp. 26-27]
JUSTICE SCALIA: An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of the powers remain in the States and do not belong to the Federal Government…. [pp. 27-28]
Justice Antonin Scalia enunciated those most relevant but less than scintillating words during exchanges between the Court and Solicitor General Donald Verrilli in the second day of the Supreme Court’s review of the constitutionality – or its unconstitutionality – of the the Patient Protection and Affordable Care Act (PPACA) of 2010, nicknamed “Obamacare.” Most of the balance of the back-and-forth between the justices and Verrilli was in the way of bean-counting: the justices would identify specific beans, and Verrilli would deny they were beans, or claim that they might be beans, depending on one’s perspective.
Not once during the exchanges did the term individual rights escape the mouths of any of the parties. It was all about what was and wasn’t a market and whether or not the government could compel individuals to enter a market created by the government for the express purpose of regulating it. The “necessity” of health care or health insurance reform was conceded by the justices, but not deemed strictly “proper” under the aegis of Obamacare. At issue was not the government’s coercive power, but its lawful power of coercion.
Reading the entire transcript of the exchanges, without listening to them, one gets the impression that the justices were only slightly less blinkered than was Verrilli. They seemed to be focused on whether or not a smörgasbord was a smörgasbord because one or two bean casseroles were missing. Definitions of beans and smörgasbords were disputed.
Politico reported that the Left was not happy with Verrilli’s defense of Obamacare:
“Solicitor General Don Verrilli seemed to struggle more than Paul Clement, attorney for the states… Over and over again, [conservative Justices] asked for a limiting principle – a reason to think approving the mandate wouldn’t lead to unlimited federal power. Verrilli struggled to answer the question and, at times, seemed unsure of whether to call upon the Commerce Clause or Necessary and Proper Clause as justification,” noted Jonathan Cohn at The New Republic in a piece titled “”Day 2 at the Court: Well, that Could Have Gone Better.”
At issue was the compulsory "mandate" that everyone must "buy" health insurance or pay a penalty for not buying it. The Solicitor General couldn't decide whether that penalty was a tax or a penalty. He was derided by two of the justices for not being able to make up his mind, which he still hasn't. The exchanges on this subject were humorous, at least to the auditors of the session. The government's case is shot full of holes on Constitutional issues centering chiefly on the power of the Congress to "regulate" commerce.
The term regulate meant something completely different to the Founders; it meant the power of Congress to stop states from interfering with commerce between the states, such as taxing goods coming across state lines and not taxing similar goods produced within a state, thus giving the untaxed producers an edge (the international version of that policy is the “protective tariff”). To the Progressives and other socialists, however, it means the power to control commerce, in this instance, to force people to buy insurance and thus participate in the resultant but nonetheless pseudo-commerce.
But then the Court’s position – at least the positions of the conservative members of it – is also shot full of holes. To judge by the nature and content of the best questions put to Verrilli, there is no reason to feel confident or encouraged that the Court will strike down the entirety of Obamacare. It may declare the individual mandate unconstitutional on purely rationalistic grounds, and leave the rest of the law in place. But it is the coercive and confiscatory nature of the law that is its core. Listening to the Court question the constitutional validity of Obamacare is much like watching someone hunting for a place to fit a piece into a jigsaw puzzle, or looking for round holes for square pegs.
A great deal of verbiage was spent on the nature of the penalty for not buying health insurance, and whether or not it was a tax – that is, a revenue-raising device – or simply punishment for not buying the insurance. Verrilli denied that it was a tax. Yet the Court seemed to think it was one, because it would be collected by the IRS. Verrilli expressed hope that not much pseudo-revenue would be raised by impounding an individual’s income, that the workability of the whole law depended on the pseudo-voluntary compliance with it by Americans and would succeed.
It may be that the conservatives realize that to declare Obamacare unconstitutional because it exceeds the enumerated powers of Congress by violating individual rights, the Court would need to also declare unconstitutional the income tax, the Federal Reserve, Social Security, Medicare, and a host of other kinds of legislation – all of which violate individual rights by direct or indirect coercion or force, or by direct or indirect confiscation. It would mean a wholesale challenging of the doctrine of altruism and collectivism, on which all such legislation is based.
Clearly, such a crucial task is beyond the ken and scope of the current Supreme Court.
The only justice who did not question the Solicitor General was Clarence Thomas. There is hope that he can educate the other conservative justices on the matter of individual rights.
But rather than dwell on the Court’s philosophical and moral shortcomings, several articles have been written that outline “necessary and proper” arguments that the Court ought to have made in reply to Verrilli’s hesitant and eclectic assertions about the imperative nature of Obamacare.
The Institute for Justice has filed an amicus brief which possibly the justices have read. It states that a compulsory contract such as is proposed by Obamacare is not a contract, because a contract is a voluntary affair entered into by two or more parties sans coercion. Compulsory participation has nothing to do with contracts, and whether or not non-participation can be "penalized" or "taxed" is irrelevant. It is still compulsion. George Will, in his nationally syndicated article, “Obamacare’s Contract Problem,” discussed the Institute’s argument:
Hitherto, most attention has been given to whether Congress, under its constitutional power to regulate interstate commerce, may coerce individuals into engaging in commerce by buying health insurance. Now the Institute for Justice, a libertarian public interest law firm, has focused on this fact: The individual mandate is incompatible with centuries of contract law. This is so because a compulsory contract is an oxymoron.
That is, bananas are not a kind of citrus fruit. Oranges cannot be classified as jelly beans. A contract denotes, not merely implies, a voluntary agreement between individuals or private entities, such as corporations or companies. Even should bribery be involved in the creation of a contract, the contract remains a contract.
The brief…says Obamacare is the first time Congress has used its power to regulate commerce to produce a law "from which there is no escape." And "coercing commercial transactions" -- compelling individuals to sign contracts with insurance companies -- "is antithetical to the foundational principle of mutual assent that permeated the common law of contracts at the time of the founding and continues to do so today…."
The Supreme Court in Commerce Clause cases has repeatedly recognized, and Congress has never before ignored, the difference between the regulation and the coercion of commerce. And in its 10th Amendment cases ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people") the court has specifically forbidden government to compel contracts.
IJ argues: The 10th Amendment forbids Congress from exercising its commerce power to compel states to enter into contractual relations by effectively forcing states to "buy" radioactive waste. Hence "the power to regulate commerce does not include the power to compel a party to take title to goods or services against its will." And if it is beyond Congress' power to commandeer the states by compelling them to enter into contracts, it must likewise be beyond Congress' power to commandeer individuals by requiring them to purchase insurance. Again, the 10th Amendment declares that any powers not given to the federal government are reserved to the states or to the people.
This is the language that ought to have been used by the Court in its interrogation of Donald Verrilli. The Institute for Justice focuses on individual rights and one’s voluntary, consensual contractual relationships with others. This language, unfortunately, is missing from the Court’s proceedings. Will concludes his article with:
IJ correctly says that if the court were to ratify Congress' disregard for settled contract law, Congress' "power to compel contractual relations would have no logical stopping point." Which is why this case is the last exit ramp on the road to unlimited government.
George Leef, director of research, John W Pope Center for Higher Education Policy in North Carolina, also published an article that reprises several salient constitutional points, “The Constitution, 'Constitutional Law,' and ObamaCare.”
What must be challenged is the premise that the Constitution actually does grant Congress "broad power" over interstate commerce. The fact is that the language of the Constitution itself does not confer such power. Anyone who reads the document in search of a clear statement -- and the drafters were nothing if not clear, careful writers -- that Congress or the executive branch is supposed to have any power at all to dictate to individuals and businesses how they must act when engaged in "interstate commerce" searches in vain.
As noted above, the original meaning of the term “regulate” has been swept under the rug of past Court decisions. It no longer means prohibiting states from taxing or handicapping production and trade between individuals in different states.
At the heart of the current dispute is "the Commerce Clause." Included in Article I, Section 8 under the powers specifically given to Congress, we find this language: "To regulate Commerce with Foreign nations, and among the several States..." Why was that inserted? James Madison later explained that "the Commerce Clause grew out of the abuse of power by the importing states in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the states, rather than as a power to be used for the positive purposes of the general government."
Thus, the purpose of that clause was to remedy a problem that had arisen in the new nation -- namely, that some states were impeding the flow of commerce with laws favoring producers within their borders. To keep commerce "regular" meant that Congress could enact laws to prevent that abuse of power by the states. It was never meant, as Madison wrote, as a grant of power for whatever future Congresses might want to do to control everything relating to people's commercial affairs.
Leef provides the historical context of how the modern meaning of “regulate” came into circulation:
Late in 1936, however, President Roosevelt, angered at a Court that had struck down many of his statist plans for controlling the nation's economy, issued his infamous threat to pack the Supreme Court. That plan met with a great deal of opposition within his own party, but it apparently worked on two members of the Court: Chief Justice Charles Evans Hughes and Associate Justice Owen Roberts. When it came to deciding the test case involving FDR's extraordinarily authoritarian National Labor Relations Act in 1937, they switched from supporting the old, correct understanding of the Commerce Clause to supporting the "progressive interpretation" that the clause gave Congress power to enact any law that would somehow "affect" interstate commerce. The funny thing about that decision, Jones & Laughlin Steel, is that the majority never bothered to mention the Court's previous Commerce Clause decisions. It was as if Schechter disappeared into a black hole.
The Court continued along that same line, allowing Congress to do whatever it wanted by calling it "regulation of interstate commerce" until reaching the utterly absurd case Wickard v. Filburn in 1942. Under the Agricultural Adjustment Act, a farmer in Ohio was fined for having grown more wheat than federal regulators permitted him to. He argued that the law was unconstitutional (at least as applied to him) because all of the wheat had been consumed on his own property. None had been sold at all, so there was no commerce, much less "interstate commerce." But, eager to uphold the "progressive" ideal of unlimited federal control over every aspect of the economy, the Court fashioned a remarkable justification. Since the farmer might have purchased some wheat in interstate commerce if he had not illegally grown his own, his conduct therefore could have "affected" the interstate market for wheat, and therefore his action was subject to federal punishment.
Much more verbiage was devoted on March 27 to how an individual who did not purchase health insurance would somehow affect the costs of insurance and cause those costs to rise. To borrow a line of thinking from the Court: I do not consume avocados, never have, never will. But somehow that affects the price of avocados everywhere and I am to blame for the current and probable rise in the price of avocados. So, I must be compelled, under penalty of noncompliance, to buy avocados to help share the cost of avocados with everyone else, in the name of avocado regulation. My former absence from that market, after all, was a detriment to society as a whole.
Now, that is just as remarkable an analogy as that presented by the Court. But it is not an argument, by either the bench or the dock, that addresses the fundamental coercive nature of Obamacare, all 2,700 pages of it.
The rectangle of light in the acres of a farm was the window of the library of Judge Narragansett. He sat at a table and the light of his lamp fell on the copy of an ancient document. He had marked and crossed out the contradictions in its statements that had once been the cause of its destruction. He was now adding a new clause to its pages: "Congress shall make no law abridging the freedom of production and trade ..."*
In Ayn Rand’s prophetic novel, Atlas Shrugged, Narragansett is a judge who has withdrawn his wisdom from the world in protest of the kind of “wisdom” exhibited by the Supreme Court. What he would actually be writing is an amendment.
Doubtless he would have included the private realm of health insurance. It would have been a no-brainer.
*Atlas Shrugged, by Ayn Rand. 1957. New York: Signet 1992. Pp. 1068-1069.