David Rivkin and Lee Casey wrote this must-read op-ed that gives a detailed history of the health care lawsuit in its path to the Supreme Court. Erwin Chemerinsky’s op-ed, unfortunately, is predictable but typically liberal thinking.
Here’s part of Rivkin’s and Casey’s op-ed:
The Constitution limits federal power by granting Congress authority in certain defined areas, such as the regulation of interstate and foreign commerce. Those powers not specifically vested in the federal government by the Constitution or, as stated in the 10th Amendment, “prohibited by it to the States, are reserved to the states respectively, or to the people.” The court will now determine whether those words still have meaning.
As we argued two years ago in these pages, the Patient Protection and Affordable Health Care Act (aka ObamaCare) is unconstitutional. First and foremost, the law requires virtually every American to have health insurance. Congress purported to impose this unprecedented “individual mandate” pursuant to its constitutional power to regulate interstate commerce, but the requirement is not limited to those who engage in any particular commercial or economic activity (or any activity at all). Rather, the mandate applies to everyone lawfully present in the United States who does not fall within one of the law’s narrow exclusions.
Under our Constitution’s system of dual sovereignty, only states have the authority to impose health and safety regulations on individuals simply because they are present. The Supreme Court has ruled many times that the Constitution denies to the federal government this type of “general police power.” Federal legislation must be grounded in one of the “enumerated” powers the Constitution grants to Congress—such as the power to regulate interstate commerce. Although the Supreme Court has interpreted that power broadly (especially since the 1940s), it has consistently held that the Commerce Clause has limits.
Rivkin and Casey are basing their arguments on what the Constitution says. They clearly understand the thinking of the Founding Fathers. If they didn’t, they couldn’t have grasped the concept of dual sovereignty. That’s a clear distinction from Prof. Chemerinsky’s op-ed:
Not surprisingly, the Supreme Court on Monday agreed to decide the constitutionality of the individual mandate in the Affordable Care Act, the healthcare reform package passed in 2010. Under current constitutional law, this should be an easy case to predict, the law is clearly constitutional. But what complicates the decision and makes the result unpredictable is whether the justices will see the issue in terms of precedent or through the partisanship that has so dominated the public debate and most of the court decisions so far.
The primary issue before the Supreme Court is whether Congress’ power to regulate commerce among the states gives it the authority to require that individuals either purchase health insurance or pay a penalty. The Supreme Court has repeatedly held that under the commerce clause, Congress may regulate economic activity that, taken cumulatively across the country, has a substantial effect on interstate commerce.
Prof. Chemerinsky’s argument essentially is that precedent, not the clearly written text of the Constitution, should determine the outcome. That’s a well-established legal tactic. It’s also wrong. When precedents don’t reflect the content of the Constitution, those precedents must be struck down. The Constitution, not 5 justices with a political preference, should determine whether something’s constitutional.
Here’s another argument from Prof. Chemerinsky:
Thus, under current law, there are two questions: First, is Congress regulating economic activity? Second, if so, looked at in the aggregate, is there a substantial effect on interstate commerce?
The answer to the first question is no, Congress wasn’t regulating economic activity. They were imposing their will without the consent of the governed. The Supreme Court has given wide latitude to cases involving the Interstate Commerce Clause in the past. That’s led to this moment.
Had the justices not bought into clever lawyerly arguments but instead stuck with the Constitution, the long list of precedents that Prof. Chemerinsky now cites wouldn’t exist.
Prof. Chemerinsky argues that politics will determine the Supreme Court’s final ruling. That argument is flimsy at best. The reality is that Prof. Chemerinsky doesn’t like the fact that the ruling will be based on the Constitution, not on precedent.
It’s time to start scrapping precedents when they conflict with the Constitution. It’s time to put limits on the things that the federal government is allowed to do.