If the Supreme Court upholds purchase mandates in health care, they will become a mainstay of federal regulation throughout the U.S. economy.
By DAVID B. RIVKIN JR. And LEE A. CASEY
Since the Supreme Court’s historic three-day ObamaCare hearings in late March, the president and his supporters have tried to pressure the Justices into upholding that law, asserting that any other decision would overstep the court’s constitutional bounds. Ruling against ObamaCare would not be what the president called illegitimate “judicial activism,” but an appropriate exercise of the Supreme Court’s core constitutional role.
“Judicial activism” is one of those agreeably ambiguous terms that can support almost any criticism of the courts. Under our constitutional system, judicial activism entails judges rewriting rather than interpreting the laws, exercising “will instead of judgment,” in Alexander Hamilton’s phrase.
Measuring a federal statute like ObamaCare against the Constitution and finding it wanting is not judicial activism. This, as Chief Justice John Marshall noted in the early (1803) and much-quoted Marbury v. Madison case, “is of the very essence of judicial duty.”
This duty is not properly limited, as ObamaCare’s increasingly desperate supporters claim, to judicial enforcement of the Bill of Rights and other affirmative prohibitions on congressional power. The Constitution must be interpreted and applied as a whole, and its basic architecture—in particular the limitations inherent in the enumerated nature of Congress’s powers—is just as critical to the defense of individual liberty as are any of the other rights it guarantees.
The Framers assumed that the Constitution’s federalist architecture, dividing power between the federal government and the states (creating a “vertical” separation of powers to complement the “horizontal” separation among the three federal branches), would be the primary defense against governmental overreaching. Indeed, Hamilton argued in the Federalist Papers (No. 84) that adoption of a Bill of Rights “would even be dangerous” for the very reason that “[t]hey would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted.”
Accordingly, the Supreme Court always has measured federal statutes against both the Bill of Rights and the Constitution’s structural protections. It has struck down laws found wanting in either case.
To uphold ObamaCare’s insurance-purchase mandate as a legitimate exercise of Congress’s power to regulate interstate commerce, the court must find some neutral, judicially enforceable limiting principle that would maintain the Constitution’s balance of power between federal and state authority. That principle must keep the power to regulate interstate commerce from morphing into a general power simply to regulate the citizenry. The court has always ruled, correctly, that only the states have such a general “police” power under our Constitution.
No such limiting principle has yet been suggested because none exists. The best government lawyers have done is to claim that Congress imposed the insurance mandate as a means of regulating how people (especially the young and healthy) will pay for the health care they will someday use. That Congress would regulate Americans as future market participants and, having chosen insurance as the regulatory mechanism, it can require everyone to buy that insurance now. This is how insurance works—it must be obtained before the covered eventuality occurs.
But there is nothing magical about “insurance”—for health care or otherwise. If Congress can regulate Americans as future consumers (and everyone is a future consumer in dozens if not hundreds of markets), then it could equally impose any number of mandates on the citizenry today as a means of regulating the transactions in which they are expected to engage tomorrow, next week, or in 40 years.
Such mandates could require prepayment now for commodities or services to be consumed in the future, thereby benefiting today’s markets and consumers by injecting additional liquidity and perhaps decreasing their costs. Indeed, Congress could impose even more blatant cross-subsidizing mandates, as it did in ObamaCare, where health-insurance premiums paid by young members of the middle class are expected to defray the costs of health care being consumed by the less affluent.
If upheld, such purchase mandates would become a mainstay of federal regulation, offering Congress an easy way to cure the ill effects of constitutionally proper but economically dysfunctional schemes. With ObamaCare, Congress sought to offset ruinously expensive new insurance industry regulations, which barred normal underwriting considerations, such as a customer’s pre-existing conditions, by forcing all Americans to become insurance customers.
An identical approach would permit imposition of a similarly ruinous (but constitutional) “green” car sales requirement on automobile manufacturers, supported by a new (and equally unconstitutional) mandate that all Americans buy a new, “green” car at periodic intervals or pay a penalty. And so it goes.
There is virtually no economically unrealistic regulation—that forces companies to produce goods nobody wants to buy, or sets artificial prices—that could not be salvaged at least in the short run by an offsetting purchase mandate of some kind. Yet in the long run the resort to central planning, effected through such mandates, would fare no better in the U.S. than it did in the Soviet Union.
Although the policy merits of various mandates could be honestly debated, there simply is no neutral, judicially enforceable basis on which courts can determine which prepayment mandates Congress can impose as a means of regulating future transactions and which it cannot. In fact, if the courts were to scrutinize such mandates, as ObamaCare defenders suggest, striking down those they considered to be too onerous or preposterous (such as a “broccoli mandate”) the judges truly would be engaged in illegitimate judicial activism.
As the Supreme Court has consistently ruled in the past, the Constitution gives Congress only limited and enumerated powers. However vexing a particular problem may be, Congress can address it using only those powers. If its preferred solution requires the exercise of a power it was denied, such as a general police power, then Congress must think again. If, as in this case, Congress persists in adopting legislation that goes beyond its constitutional authority, the courts must invalidate it. That is not judicial activism. It is the fulfillment of the judiciary’s constitutional duty.
Messrs. Rivkin and Casey are lawyers who served in the Justice Department during the Reagan and George H.W. Bush administrations. They represented the 26 states in their challenge to ObamaCare before the trial and appellate courts.
A version of this article appeared April 24, 2012, on page A15 in some U.S. editions of The Wall Street Journal, with the headline: Overturning ObamaCare Isn’t ‘Judicial Activism’.
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