Preparing for Thursday’s ruling, Part 1

| June 27 2012
Christopher Cook

On Thursday, the Supreme Court is set to rule on Obamacare. Generally, four possible outcomes are posited:

  1. The entire law is upheld.
  2. The insurance mandate is struck down, but the entire rest of law stays. 
  3. The mandate and two related provisions are struck down but the rest of the law stays. 
  4. The entire law is struck down. 

At this point, many are speculating that some or all of the law will be overturned. This contention is based on the tone and tenor of the questions in oral arguments, a tenor which saw Justice Kennedy significantly more hostile to the individual mandate than some expected. However, the bottom line is that no one but the Justices knows how they will rule.

Whatever happens, however, we need to know what is right and what is wrong. The Supreme Court has gotten many things wrong, some of them spectacularly wrong. (Dred Scott, Plessy, Korematsu spring to mind—all “Democrat” decisions, by the way, insofar as Supreme Court decisions can be designated as such.)

Whatever the Court rules tomorrow, the individual mandate is not Constitutional:

States can require people to buy insurance for automobiles and health care. So why can’t the federal government? According to Professor Elizabeth Price Foley, the U.S. Constitution gives the federal government limited and enumerated powers that confine it. The Constitution gives different powers to the states than it does to the federal government. Just because states have the power to establish mandates for insurance does not suggest that the federal government has the same power.

 

The Constitution was sold to anti-federalist and holdouts nervous about an overly strong central government precisely on these grounds. Madison assuaged their fears by asserting this in no uncertain terms: The federal government is to have limited, fixed, enumerated powers; the states are to have plenary power.

At some point—after Americans have reigned in an out-of-control federal government—we will have to discuss the notion of states having that much power. But in the meantime, the constitution makes it clear that the federal government certainly does not.

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