Every constitutional law student learns that one of the fundamental principles of the Constitution is that the United States government is a government of enumerated powers, of limited powers. It has neither therefore unlimited nor pervasive powers.
Indeed, under the Ninth Amendment, “The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.” The Supreme Court does not like to use the Ninth Amendment, but the Justices certainly are aware of the limits on government power and of Congress.
The Tenth Amendment further provides that “The powers not delegated to the United States by the Constitution, not prohibited by it to the States, are reserved to the States respectively, or to the people.”
The most common basis of Congressional statutes is the Commerce Clause. The Spending Clause, Taxation Clause, and the Property Clauses are also significant. The Commerce Clause is a broad grant of power to Congress to regulate commerce between the states, but as the Morrison and Lopez cases tell us, it is not unlimited.
The New York Times had a lead article March 20 on the 1942 Supreme Court case of Wickard v. Filburn. The case extended Congress’ powers under the Commerce Clause to a farmer’s growing of wheat on his own land for his domestic consumption rather than selling it in the market. The case was followed in 2005 in Gonzalez v. Raich, which upheld Congress’ powers to regulate home-grown marijuana used for medicinal purposes.
Wickard v. Filburn represented an epochal shift during the New Deal of Congress’ powers to act. The government’s powers increased through World War II, the Korean War, and the Cold War.
Health insurance is clearly a business in interstate commerce. Thus, Congress can regulate the insurers as it does other industries. For example, it can impose capital requirements, pricing, or mandate specified coverage. That’s regulating the businesses in interstate commerce.
It is not the same as regulating individuals who do not want to purchase the health insurance. They’re not in commerce.
Wickard involved regulation of commerce by the government, such that certain crops otherwise produced by the farmer could be banned.
The case did not involve the government telling the farmer what he must grow, only that which he could not.
An analogy would be if Congress responds to the growing number of doctors, who refuse to accept Medicare because of low reimbursement rates, by ordering physicians to accept Medicare patients as a condition of their license to practice medicine.
The individual mandate has been analogized to requiring automobile insurance as a condition of driving a car. A driver’s license is a privilege, which the state can condition upon insurance. One does not have to own a car, as shown by our Secretary of Energy, to live and survive in our society, especially in urban areas.
Living though is a right, not a privilege conditioned by the state. The State cannot condition living upon paying a fee or tax.
The Taxation Power of Congress is very broad, but it cannot be conditioned on an unconstitutional choice; that is, the only pay to avoid the tax is to accept an unconstitutional mandate.
A new argument is that ObamaCare is constitutional based on the Necessary and Proper Clause, which allows Congress to enact necessary and proper statutes to effectuate the powers vested in the government by the Constitution. This grant of power to Congress is not broad, but limited to measures in support of powers already possessed by the government. Thus, the Necessary and Proper Clause does not render constitutional an act which is otherwise unconstitutional.
This case though has much broader implications than the Constitutionality of ObamaCare. The effect of upholding the statute will be to judicially amend the Constitution to grant the federal government plenary powers to regulate and command all aspects of our lives, limited only by the extent to which courts still apply the Bill of Rights.
The question is if Justice Kennedy wishes to be known through history as the Justice who judicially amended the Constitution.