Perhaps the worst constitutional defense of Obamacare you will ever read

Now that the Supreme Court has officially taken up the question of Obamacare, we are in store for even more legal analyses attempting to predict which way the justices will rule, or argue which way they ought to rule.

A quick prediction of my own: Few, if any, of these analyses will be as worthless as the one Einer Elhauge offers in today’s New York Times.

Elhauge, a law professor at Harvard University and founding director of Harvard’s Petrie-Flom Center in Health Law Policy, makes one point that is patently — inane? specious? vacuous? let’s go with specious — and one point that unintentionally undercuts his own argument. Let’s look at each.

First, the patently specious point:

For decades, Americans have been subject to a mandate to buy a health insurance plan — Medicare. Check your paystub, and you will see where your contributions have been deducted, whether or not you wanted Medicare health insurance.

Many opponents dismiss this argument because Medicare (unlike the new mandate) requires the purchase of health insurance as a condition of entering into a voluntary commercial relationship, namely employment, which Congress can regulate under the commerce clause. Thus, they say, the Medicare requirement regulates a commercial activity, whereas the new mandate regulates inactivity.

Now, I have followed the Obamacare debate pretty closely, including attending the oral arguments at the 11th Circuit Court of Appeals this summer, and I have never heard or read even a single person offering the rationale that Elhauge claims “many opponents” of the law make. However, I am willing to stipulate that the director of a center on health law policy may have been privy to more arguments than I have been, and that there may in fact have been some Obamacare opponents who have concocted such a line of reasoning.

Anyway, that’s not what makes his point patently specious.

What makes it specious is that Elhauge would have the reader believe this is the best, or maybe only, argument about the difference between Medicare and Obamacare. That is bunk. The best, clearest argument that’s been made about the distinction between Medicare and Obamacare is that Medicare is a government program, and the paycheck deductions are a tax to pay for that government program.

No one on the right argues that Congress can’t enact a tax to pay for a government program such as Medicare. What nearly everyone on the right argues about Obamacare, however, is that a) health insurance is a private product, and there’s no constitutional authority to mandate the purchase of a private product; and b) the consequences written into Obamacare for failure to comply with a mandate are not a tax but, in Congress’s own language, a “penalty.” Congress used the word “tax” elsewhere in the law, but not in the section that enforces the mandate. (Whether that’s because, as in other cases, congressional Democrats were sloppy in drafting the law or because they simply didn’t want to be seen enacting a tax is debatable, but irrelevant to the legal discussion.)

So, to distinguish between Medicare and Obamacare, one doesn’t need to resort to the tortured argument Elhauge offers up so that he can knock it down. There’s a much more straightforward and prevalent argument he avoids entirely, while making sure to weave the specious “anyone who has engaged in any activity that affects commerce must buy health insurance” claim into the rest of the piece.

Now, about his unwitting undercutting of his own position. Here’s what Elhauge writes:

Opponents of the new mandate complain that if Congress can force us to buy health insurance, it can force us to buy anything. They frequently raise the specter that Congress might require us to buy broccoli in order to make us healthier. …

There are, of course, limits to what Congress can do under the commerce clause. If it tried to enact a law requiring Americans to eat broccoli, that would be likely to violate bodily integrity and the right to liberty. But the health insurance mandate does not require Americans to subject themselves to health care. It requires them only to buy insurance to cover the costs of any health care they get.

And Elhauge thinks conservatives are the ones making distinctions without differences?

Here, I defer to Mickey Kaus, because I’m not sure anyone can improve on his rebuttal to this point:

Well, OK then! As long as we can just leave it rotting in the fridge.** … But it’s a little suspicious — and surely not a selling point — that under Elhauge’s argument the only limits on government would be the rights — like “bodily integrity” and privacy — that liberal lawyers have dreamed up but not the limit — i.e. whether or not something is “interstate commerce” — the Founders dreamed up.

** — Rotting broccoli might breed disease and suppress appetites, inhibiting interstate commerce. Could Congress ban every means of disposing of the broccoli (that it has made you purchase) other than eating it? Is that any different from making you eat it? To enforce the right to “bodily integrity,” would the courts have to step in and void at least some of these rules for broccoli disposal, even if they are obviously regulations of commerce and do not, in themselves, violate bodily integrity? Elhauge’s rule may not get the courts out of the complicated business of meddling with federal regulations and striking down some of them. They’d just be meddling on grounds that he likes. (emphasis original)

Is this the best the law’s most erudite defenders can come up with?

– By Kyle Wingfield

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217 comments Add your comment

Don't Tread

November 17th, 2011
11:09 am

The law, like this legal “analysis” (using the term loosely here), is deliberately written that way in an attempt to weasel its way around Consitiutional issues.

Of course, the “fix” according to Democrats, is single-payer (i.e. complete government takeover of health care entirely, and 18% of the economy with it). Grubbling for dollars at its finest.

DannyX

November 17th, 2011
11:18 am

What is the rationale behind the conservative leaning DC appeals court decision to uphold Obamacare?

I thought you would have updated the scorecard by now. You sure are quick with the blogs when they go your way.

jt

November 17th, 2011
11:20 am

“No one on the right argues that Congress can’t enact a tax to pay for a government program such as Medicare. ”
.
BS.
I do.
.
This statement separates the Constitutional MEN from the statist BOYS.
.
Just because a Government Program has been in existence for years ..doesn’t make it right.
.
Ron Paul 2012..cuz…………Haven’t we had enough of this Metro-sexual pansy azz crap.?

jm

November 17th, 2011
11:26 am

Obamacare is a joke. Healthcare is a problem in this country but I don’t think Obamacare is the solution.

Hillbilly D

November 17th, 2011
11:27 am

In spite of all the legal arguments and anything anybody says here, it’s all going to come down to the vote of one Supreme Court justice. The other 8 will split 4-4 and what the 9th justice says, will be the law of the land, regardless of who does and doesn’t like it or what argument anybody makes. Who says one vote doesn’t count?

As for the Medicare argument, the way I see it, the Federal Government requiring you to participate in a Federal government program is a different proposition than Federal Government requiring you to purchase the product of a private company.

There might be a different outcome if it was a State Government requirement but that’s not the question here, as I understand it.

Scooter

November 17th, 2011
11:32 am

Obamacare just gets us into the transition period needed for single payer health insurance. The Obama stated his support of single payer and plan on video before he was elected to be our President.

Voice of Reason

November 17th, 2011
11:35 am

*sigh*

Get the Goverment out of healthcare entirely.

Tiberius - Your lightning rod of hate!

November 17th, 2011
11:36 am

Excellent point, Hillbilly D, and the exact one I was thinking of just before you posted.

You should be very worried that we’re thinking alike. ;)

Hillbilly D

November 17th, 2011
11:50 am

Tiberius

Nah, it’s you who should be worried. :lol:

St Simons - we're on Island time

November 17th, 2011
12:02 pm

this is just an intermediate step to Medicare for All, as it should be

Supreme Conflict/Where is the Outrage?

November 17th, 2011
12:20 pm

What people need to be outraged about is the fact that Clarence Thomas and Anthony Scalia attended a Republican Fundraiser that was also attended by the attorney who will argue AGAINST the healthcare law! Clarence Thomas’ wife is also a lobbyist against the healthcare law.

That is a BLATANT conflict of Interest! Republicans throw rocks and hide their hands.

Shame on Clarence Thomas and Anthony Scalia!

carlosgvv

November 17th, 2011
12:23 pm

In a perfect world, lawyers arguing against Obama care would explain to the Judges that the Medical Industry is against it because they are afraid Doctors, Hospitals and Drug compaines will wind up making less money off the backs of the American People. Conservative politicians would also report to the people that they are bought and paid for by Big Business, which includes the Health Industry, and are doing and saying what said Industry tells them to do and say. Of course, if we lived in a perfect world to begin with, none of this haves and haves not situations would exist. All Americans, rich and poor would have access to affordable melical care and thousands of Americans would not die each year because they can’t afford doctors and hospitals.

Supreme Conflict/Clarence Thomas and Anthony Scalia

November 17th, 2011
12:23 pm

@jm November 17th, 2011 11:26 am – Obamacare is a joke. Healthcare is a problem in this country but I don’t think Obamacare is the solution.

What is your brilliant solution if you have one? NOT!

Bart Abel

November 17th, 2011
12:23 pm

To date, two out of three CONSERVATIVE appellate courts have ruled that the mandates are constitutional.

Last week, a the appeals court in the D.C. circuit broke the tie and ruled that the mandate is constitutional. This particular ruling was a major defeat for the right for a couple of reasons. First, the D.C. Circuit is generally considered the most important federal bench below the U.S. Supreme Court. And second, the judge who wrote the opinion was Judge Laurence Silberman. Silberman is a Reagan appointee known for being one of the most right-wing jurists on the federal appeals bench.

Siblerman wrote the following in his decision, “We acknowledge some discomfort with the Government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce. But to tell the truth, those limits are not apparent to us, either because the power to require the entry into commerce is symmetrical with the power to prohibit or condition commercial behavior, or because we have not yet perceived a qualitative limitation. That difficulty is troubling, but not fatal, not least because we are interpreting the scope of a long-established constitutional power, not recognizing a new constitutional right.

Old Timer

November 17th, 2011
12:26 pm

Before people talk about the supposed unconstitutionality of the ACA and how free you are from government mandates, go read Wickard v. Filburn. Filburn, a farmer, grew more wheat than his allotment, but he did not sell more than his allotment, retaining the excess for his private use to feed his farm animals. He argued that the federal government had no right to penalize him and tell him what he could do with his private property. The U.S. Supreme Court, however, sided with the federal government, declaring that although Filburn said he would not sell the excess, his growing the excess wheat could have an impact on the price of wheat, in that he would not be buying wheat to feed his animals on the market.

In short, you are not as free as you think you are. It is very dangerous to assume that your 10th Amendment argument will win out at the end of the day.

gm

November 17th, 2011
12:31 pm

Let you selfish idiots on the right call it Obama care because President Obama cares , because he cares about the 30 million people that dont have insurance and the millions of women that get cancer screenings from prgrams that you hypocrites on the right want to cut.
Uncle Clarence wife is leading the charge against heath care but the Thomas have government coverage and we have all these stupid rep redecks living in trailers and have no healthcare but standing with the Hannity, Limbaugh of the world who have best coverage, this tell you what bunch of retards in the rep party.

Get Real

November 17th, 2011
12:42 pm

gm….go back into your cave of ignorance; what complete and utter dribble

How can you begin talk about Clarence Thomas when Elana Kagan was Solicitor General and actually argued the law…..moron

Get Real

November 17th, 2011
12:43 pm

Supreme Conflict/Where is the Outrage?

Talk to me about Elana Kagan smart guy

Jefferson

November 17th, 2011
12:47 pm

Sooner of later you will have to help your fellow Americans, due to the excesses of the health industries.

von

November 17th, 2011
12:47 pm

Of course you could simply allow health insurance companies to compete across state lines to drive up competition and drive down insurance costs but that would be showing Americans that the free market is better than government control and the Libs just cant have that!

Bart Abel

November 17th, 2011
12:50 pm

To be sure, it’s not the mandate that bothers Republicans and their supporters. They simply don’t want to allow President Obama to succeed.

Proof of this statement is that mandate was a Republican idea, first floated by the Heritage Foundation, subsequently advocated by Newt Gingrich, implemented by Mitt Romney at the state level, endorsed for the national level by Jim DeMint when he supported Romney’s presidential campaign in ‘08, and endorsed by Senate Republicans, including Senator Chuck Grassley, until they succeeded at getting the public option removed from the health care legislation and then needed something new to complain about (at that point, Grassley and others reversed themselves on the mandate).

Further proof that the mandate isn’t really a problem for Republicans is that reasonable alternatives to the mandate are easily legislated. (Notice that House Republicans voted to repeal ObamaCare, but never followed-up on the “replace” portion of their campaign promise.) However, Republicans have made no effort to replace the mandate because they believe that it makes ObamaCare more vulnerable to political and judicial attack.

http://www.gao.gov/products/GAO-11-392R

JDW

November 17th, 2011
12:59 pm

@Kyle, I still find it hilarious that the individual mandate, a mechanism dreamed up by and IMPLEMENTED by Republicans, is the platform they now wish to argue. But I guess it really doesn’t matter, I read somewhere this morning that if Obama announced that the means to make energy artificially, abundantly and cheaply by the afternoon of the announcement the Republicans would denounce him for destroying the profits of the oil business.

As for the arguments, I prefer simpler myself:

“The Commerce Clause refers to the federal government’s power to regulate commerce “among the several States” as enumerated in Article I, Section 8, Clause 3 of the U.S. Constitution. The Necessary and Proper Clause refers to the last clause in Section 8, which gives the federal government the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers . . . .”

Simply put, if Congress wants to reform health care, it can do so because health care is a huge part of the nation’s commerce. And it can make any law that is necessary and proper to execute that reform.”

- Jack Balkin, a professor of constitutional and First Amendment law at Yale Law School

Please note that the Constitution “gives the federal government the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”. I see nowhere an exception for laws Republicans don’t like because they were touched by Obama.

td

November 17th, 2011
1:00 pm

carlosgvv

November 17th, 2011
12:23 pm

You are making a political argument. This is a legal question. As much as the libs might think otherwise, we have a Constitution and it does not allow the government to do whatever they want to do.

td

November 17th, 2011
1:05 pm

Bart Abel

November 17th, 2011
12:23 pm

“or because we have not yet perceived a qualitative limitation”

They will be getting there limitation very soon when the SC decides OBamacare is unconstitutional.

J

November 17th, 2011
1:05 pm

What about auto insurance? Yes its slightly different because you have a ‘choice’ to drive or not drive. But in some areas, reallly there is no choice if you live in the country… you have to drive and you have to buy auto insurance, otherwise a ticket.

Lil' Barry Bailout (Revised Downward)

November 17th, 2011
1:06 pm

Libtards don’t think government can do whatever it wants. They only think libtard-run government can do whatever it wants.

Libtards: Fascist hypocrites.

Bart Abel

November 17th, 2011
1:06 pm

Of course you could simply allow health insurance companies to compete across state lines

Allowing health insurers to compete across state lines amounts to the federal government telling the states that they can’t regulate, as they see fit, insurance sold in their states. You can’t honestly claim to support states’ rights by opposing a federal mandate to purchase health insurance (”leave it up to the states”) while simultaneously opposing states’ rights by arguing for allowing health insurers to sell their products across state lines. Otherwise, somebody might reasonably accuse you of being disingenuous…or worse.

Logical Dude

November 17th, 2011
1:08 pm

Kyle says: Is this the best the law’s most erudite defenders can come up with?

Kyle previously says: Few, if any, of these analyses will be as worthless as the one Einer Elhauge. . .

So, by picking and choosing the worthless arguments, you answer your own question!

How about choosing a validly supported argument and going after that one instead of the (your words) specious ones?

JDW

November 17th, 2011
1:10 pm

@VON…”Of course you could simply allow health insurance companies to compete across state lines to drive up competition and drive down insurance costs but that would be showing Americans that the free market is better than government control and the Libs just cant have that!”

Blue Cross Blue Shield sells in every state, Aetna sells in every state and so do many others. What you are really saying is if we let some companies selectively ignore certain state laws that might make insurance cheaper.

Bart Abel

November 17th, 2011
1:12 pm

How does a guy using a racist handle (”Lil’ Barry) get away with posting the word “Libtards”, among other things, on this blog? I’ve seen Kyle warn or penalize others for less.

MrLiberty

November 17th, 2011
1:15 pm

Medicare is as unconstitional as Obamacare. Wouldn’t expect a so-called conservative to appreciate that fact.

LT Dan

November 17th, 2011
1:19 pm

J: the Federal Government does not require an individual to purchase auto insurance. The states do. Each state has its own guidelines (there was a time in Alabama that the state did not require motorists to purchase auto insurance; I personally do not know if that has changed).

My personal opinion is that the individual states should preside over healthcare legislation within their respective borders and leave the Federal government out of it (as much as possible).

Jackson Baer

November 17th, 2011
1:19 pm

Ron Paul is going to pull an upset in Iowa, though now it’s less of an upset with him actually high in the polls. I’ve been saying it for a while now and this will definitely shake things up in the race. Even when you don’t agree with him, at least you know you’re getting what he really believes and not just talking points.

http://www.whatthehellbook.com/the-book/

Lil' Barry Bailout (Revised Downward)

November 17th, 2011
1:24 pm

How do you get “racist” out of “Lil’ Barry”?

Typical libtard. Can’t compete so he wants the authorities to shut down his betters.

JDW

November 17th, 2011
1:29 pm

I know Bart, Lil’ Barry is a bit hard to take but he is the perfect caricature of everything that is “right” about today’s Republican Party

Tiberius - Your lightning rod of hate!

November 17th, 2011
1:30 pm

“To be sure, it’s not the mandate that bothers Republicans and their supporters.”

Tell you what, Bart Abel. You don’t presume to speak for me, and I will afford you the same courtesy, OK?

“Cause it IS the mandate to THIS Constitutionalist!

Bart Abel

November 17th, 2011
1:33 pm

How do you get “racist” out of “Lil’ Barry”?

How do you not get “racist” out of “Lil’ Barry”? You’re obviously applying rapper slang to the President because of the color of his skin.

I don’t expect you to admit the obvious, but we get it.

JDW

November 17th, 2011
1:37 pm

@Tiberius…“Cause it IS the mandate to THIS Constitutionalist!

So how do you explain Section 8, Clause 3 of the U.S. Constitution. The Necessary and Proper Clause refers to the last clause in Section 8, which gives the federal government the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.

Is there a definition of the phrase “all Laws” that does not include an individual mandate?

Bart Abel

November 17th, 2011
1:40 pm

I don’t believe you, Tiberius. Without ever having met you, I’m quite confident that, like most consistent Republicans supporters you had no objection to the federal mandate, a Republican idea, until the guys on Fox News told you to object to the federal mandate (about the time that the public option was taken off the table).

My comment above has the proof to support my assertion.

Dominick

November 17th, 2011
1:42 pm

Maybe healthcare is not a problem at all. Maybe it is a symptom that when looked at in hindsight, appears to be a problem. Maybe we are trying to fix the wrong thing.

No worries. I’ll take care of it.

brad

November 17th, 2011
1:42 pm

Lil’ Barry is Kyle’s alter ego.

carlosgvv

November 17th, 2011
1:45 pm

td – 1:00

It’s sad to realize there are people, like you, who foolishly believe that politics plays no part in our legal decisions. This Obamacare question is full of politics and money and if you actually think this won’t matter in our courts, you have much to learn.

JohnE

November 17th, 2011
1:50 pm

Like all good Republicans say. If you cant afford health insurance ….then die please.

Jefferson

November 17th, 2011
1:52 pm

If there was a extremly contagious disease that kills within a week of exposure, I’d bet some would be all for the gov’t doing something about it. Hard to spend all that money in heaven, you don’t need it.

Scott

November 17th, 2011
1:59 pm

If you want other people to pay for your health care then you are a leech and a maggot. Get a job and get a life.

td

November 17th, 2011
2:00 pm

carlosgvv

November 17th, 2011
1:45 pm

It is not politics but instead philosophy. Politics are affiliated with parties but there are lib Republicans and conservative Dems. This is about philosophy. Traditionalist vs. Non-traditionalist, founders interpretation or living document, conservative vs liberal, people that want the limited role of government vs. the people that want government to take care of them from birth to grave, the producers vs. the parasites.

saywhat?

November 17th, 2011
2:01 pm

lil barry is a moocher who either has no job and lives with his mom, or else steals from his employer by blogging at a 3rd grade level all day instead of working. Either way, it spells loser with a capital “L”. The Affordable care act will be upheld. Suck on it rightards.

saywhat?

November 17th, 2011
2:03 pm

brad

November 17th, 2011
1:42 pm
“Lil’ Barry is Kyle’s alter ego.”

As misinformed as Kyle may be, thats still just a mean thing to say about him.

Tiberius - Your lightning rod of hate!

November 17th, 2011
2:07 pm

JDW, you may not pick and choose what part of the Constitution you need to make your point. Parsing of the Constitution is NOT allowed in intelligent discussion.

And Bart Abel, there is a difference between a Republican and a Constitutionalist. While I may support some things that the GOP does (like oppose this abortion of a health care law), I do so with a principled argument that Federal mandates to buy a private product are NOT Constitutional, no matter who is or was for them. And while you may need teh DNC or a liberal news outlet like MSNBC or CNN to tell you what to think, I do my thinking as a free and liberty-minded individualist; something you cannot comprehend.

Welcome to the Occupation

November 17th, 2011
2:12 pm

Lil’ Barry is Kyle’s alter ego.

Lil’ Brainout thinks he’s fighting for the true way banging away at his keyboard trying to defend the parasitic class of the 1% who are trying to consolidate their power by consigning the bulk of the population to debt peonage. The fact that Barry (by the way what’s up with using the name of the person you purport to hate as your moniker?) is obviously not one of the 1% is sad and shows his true colors. He’s happy to join the shock troops and do propaganda duty for the ruling powers as a way to convince himself he’s part of the 1% usurper class, which otherwise he would be shut out of.