The Constitution is utterly silent on the Affordable Care Act (Obamacare) requirement that individuals purchase health insurance, else suffer the pain of paying a penalty.  There were no health maintenance organizations; no Medicare and Medicaid, and no inkling that government would one day consider itself responsible for the health status of the flesh and bones of its citizens when the Constitution was drafted.  That hasn’t stopped the US Supreme Court, acting in its capacity as a super legislature, from agreeing to decide the constitutionality of the matter, nor has it dissuaded lawyers and commentators from each side of invoking high-minded legal principles purportedly contained in the Constitution to bolster their arguments.   But there are no high-minded legal principles in the US Constitution.  There is nothing but a rough outline of a covenant between a government and its people, which is subject to adjustment any time exigencies require, as its history conclusively proves.

Since the Constitution is silent on the matter of mandated health insurance purchases, the Constitution will say whatever the judges decide it says in formulating their ruling.  This is not new to constitutional jurisprudence.  Judicial fiat is a much easier and more responsive means of amending the Constitution to calibrate its tenets to the tenor of the times than is constitutional amendment, so the document has only rarely been formally amended.   The Constitution’s last significant formal amendment (the 26th) was in 1971, when it lowered the voting age to eighteen.  The argument that a man should be able to vote in the country that asks him to commit his life to combat in its service was an easy one to make, particularly in the wake of the disastrous adventure in Vietnam, and the swell of baby boomers coming of age who were being asked to fight.   Before that, the only significant amendment since the repeal of Prohibition (the 20th) was to limit presidents to two terms, coming on the heels of FDR’s four successive elections (the 21st).  The latest amendment, in 1991 (the 27th), prevents Congressional pay raises from taking effect until the next Congressional session after passage.  Yawn.

But the Constitution has nonetheless drastically changed over the years.  At its inception, it allowed and provided for slavery; after slavery’s abolishment, it allowed, according to judicial interpretation, the separate but equal doctrine (Plessey v Ferguson, 1890), until it didn’t (Brown v Board of Education, 1954).  Except for abolishing slavery (and it’s debatable whether a Constitutional amendment was really required for its abolishment), nothing of these decisions, purportedly based on high-minded legal principles contained within the document, required Constitutional amendment.  And this is but one example of many.  The document has been amended countless times to be sure, but mainly just in its meaning, and mainly by judges, not legislatures, as the document itself provides. 

Perhaps the most enlightening comment I heard in law school came from Charles Alan Wright (now deceased), esteemed constitutional law scholar at the University of Texas.  In discussing the Due Process clause contained in the Fifth and Fourteenth Amendments, he observed that due process is simply one of the handiest of tools available to a judge when formulating a rational, i.e., ostensibly legal, foundation for a ruling that otherwise has none, but that the judge nonetheless wishes to make.  And this is exactly how the process works—judges decide in their hearts which way to resolve an issue, and only then cast about in their heads for principled legal arguments to rationally justify their emotional biases.  Of course, this describes in general the rationalization methodology for decision-making employed by humans in every walk of life; the point here is that judges arrive at their ostensibly principled legal decisions no differently than the rest of us.

The legal arguments on the constitutional viability of ACA have focused on the Commerce Clause.  The Commerce Clause is in Article I, Section 8, Clause 3, and provides that Congress has the enumerated power to regulate, among other things, commerce among the states.  The follow-on (in the same Article) Necessary and Proper clause grants to Congress the power to enact laws Necessary and Proper to carry into execution the enumerated powers.  The conflict over what constitutes interstate commerce has burned brightly since the republic’s founding, ranging from whether a steamship monopoly on a navigable interstate waterway is interstate commerce (Gibbons v Ogden, 1830—it is), to whether a farmer growing wheat on his own land for his own consumption is engaged in interstate commerce and so is subject to the Agricultural Adjustment Act (Wickard v Filburn, 1942—he is), to whether a barbecue restaurant in Birmingham, Alabama is engaged in interstate commerce such that the Civil Rights Act applies to prevent discrimination (Katzenbach v. McClung, 1964—it, too, is).  In short, virtually every time the federal government has expanded its economic writ, the Commerce Clause, which is considered to limit Congress to regulating only interstate, and not intrastate, commerce, has been employed to fend off the encroaching federal leviathan.  And every single time it mattered, it has failed.  The Clause was more recently employed to strike down federal laws providing for enhanced penalties for carrying concealed weapons near schools (US v. Lopez, 1995), but really, a less important ruling would be hard to conjure.  The Clause is all but moribund as a limitation on real, i.e., economic federal power, and has been throughout the history of the republic.  Lopez stands for the reality that Supreme Court jurists like to occasionally revivify moribund legal principles, but only in cases that don’t matter, just so they can keep up the pretense that it is legal principles upon which they decide cases, and not just their visceral political emotions.

In the context of the ACA, the question is whether the right to regulate interstate commerce includes the right to mandate the purchase of individual health insurance.  Framed thusly, the question is one of first impression.  This is the first time the Court has been asked to decide whether Congress has the power to mandate, pursuant to its power to regulate commerce among the states, that citizens actively participate in interstate commerce.  But then Obama, in trying to get the ACA passed without abolishing the private health care insurance system, while at the same time, effectively abolishing the private health care insurance system, was perhaps too clever by half.  There is no constitutional issue with Medicare and the FICA taxes used to pay for it.  And there would be no constitutional issue with taxing people to pay for government-provided health care.  But the constitutional law professor cum President left a gaping constitutional hole in this latest attempt at expanding the federal leviathan.  By refusing, in a lame attempt to have his political cake and eat it too, simply to tax people for the benefits that will be provided, he created a law that effectively obliterates a foundational tenet of individual liberty—that the right to free association and activity is only free when freely undertaken. 

(Incidentally, dogmatic Christendom should love the ACA.  It requires the mandatory purchase of health insurance for the original sin of existence, under the penalty of damnation by fiscal confiscation.  The ACA individual mandate is to citizenship in the republic what the doctrine of original sin is to membership in the Kingdom of God.) 

But legal arguments are the second derivatives of societal intercourse.  The base equations are economic considerations, from which are derived political imperatives and powers, from which codified and judicial laws are ultimately derived and expressed.  The base economic issue concerning the ACA is that the government of the United States has promised more than it can deliver to its citizens in the way of health care benefits, particularly to its seniors.  Revenues, as they now stand, can’t hope to pay for the promised benefits.  The ACA is an attempt to simultaneously decrease health care benefits (mainly by controlling costs), and increase revenues (mainly by mandating participation).  Because it is the young and healthy that generally don’t have insurance, and will thus be primarily affected by the individual mandate, the attempt to force insurance upon them is mainly an attempt to further and expand the scheme of transfer payments from the young and healthy to the old and feeble that now exists within the context of Medicare, and is also the primary reason the US Supreme Court will likely overturn the law, marking the first significant victory in the history of the republic for an objection to governmental expansion in matters economic couched in terms of the Commerce Clause.

For all the high-minded legal principles it flouts in making its rulings, the US Supreme Court generally understands and heeds the economics of the issues before it, and more often than not, rules accordingly, and thereby properly, mainly disregarding the law where the two conflict.  It’s why the Plessey Court refused to strike down segregation in 1890, but the Brown Court overruled its predecessor in 1954.  It wasn’t the equity of the matter as much as it was the economics.  In 1890, only a quarter-century after Emancipation, it was hard to imagine that blacks would ever be anything more than marginal participants in the American economy, and segregation seemed the most effective means of keeping the peace between the races.  By 1954, it had become clear that blacks could handily participate and contribute to society, thereby furthering aggregate economic welfare, so it became imperative that they be treated as well or poorly as everyone else. 

The ACA is bad economics.  It confiscates from the energetic young to pay to keep alive a bit longer the decrepit old.  While no society that simply casts off its elders has any hope of long-term viability, neither can any society grow and develop that is continually paying homage, and dollars, to its past.  With its individual mandate, the ACA cuts too close to the latter.  American seniors are protected by Medicare, so won’t be simply cast aside, but even Medicare’s costs and benefits have to be contained if there is to be a dynamic society from which it can be funded.  Imposing further obligations on the young and healthy to pay for the old and frail in the form of mandated insurance impairs aggregate social welfare, a fact which will not be lost on the Court.

Besides, where does it end?  The generation in their reproductive years today that is adamantly refusing to have children to keep the pyramid schemes of Medicare and Social Security viable is as much a culprit in the looming insolvencies as is the failure to extract insurance premiums from otherwise healthy people.  Might the individual mandate one day include procreation?  Imagine the irony if the same folks that howled loudest when females were denied the option of using abortion as a birth control method were to turn around and force, or at least promote, procreation, in order to save the government’s health and retirement funding system. 

There is a last (and least) reason the Court will rule against the mandate, and it has nothing to do with the law or issue before it.  The Court has become, since its activism in the Sixties and Seventies, mainly mute and irrelevant.  As well it should have.  The Court primarily exists to rule on constitutional issues, and only very rarely is there any question as to what the Constitution requires on a particular matter, sparse as it is in its details.  But the Court needs a controversy like this to occasionally arise, so it can legitimately reassert its political relevance.  If the Court ruled to uphold the mandate, as it has with virtually all the post 9/11 legislation, no matter how egregiously the statutes violated the plain meaning of the Constitution’s words and phrases in matters for which the document actually is quite clear on its imperatives, it would further sink into despondency and irrelevance.  The Court needs to occasionally overrule the legislative and executive branches if the three-legged stool of tripartite governance is to remain standing, and this is a perfect opportunity to do so.  A ruling striking down the individual mandate would not only be politically popular (don’t think for a moment that justices don’t pay attention to polls), but also economically advantageous.

In my opinion, the individual mandate will be overturned.

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