Cuccinelli 1, Obamacare 0
Virginia AG Ken Cuccinelli's court win over the individual mandate gives conservatives the chance to finally limit Congress' commerce clause powers.
Last week, Virginia Attorney General Ken Cuccinelli’s effort to protect Virginians from the full fury of Obamacare bore fruit. (Full disclosure I was a delegate for Cuccinelli at the Virginia Republican convention). Judge Henry Hudson struck down one portion of the law known as “Obamacare” that required every person to buy insurance or be penalized by the IRS. Here, language, politics and the taxing power and the commerce clause all collided.
Because President Obama had promised not to raise taxes on the middle class when he was running, he desperately wanted to pass the bill without new taxes on the middle class. Thus, the IRS monitored “penalty” was deemed not to be a tax by the president on national television and by Democrats when writing the language of the statute. The reason an individual mandate was needed were twofold. First, some of the Blue Dog Democrats wanted the Congressional Budget Office (“CBO”) to score the cost of the bill below a certain number. The individual mandate knocked off about $50 billion a year from the cost. Secondly, it is the only thing in all of Obamacare that deals with the free rider problem. There is nothing else in the bill that deals with the problem of people waiting until they get sick to buy health insurance. If insurers cannot deny you insurance for “preexisting conditions” i.e., a disease you already have, why pay premiums until you get the disease?
The elimination of the individual mandate thus has anti-conservative effects in two ways. First, it removes one fiscally sound impulse to obtain new revenue for a new entitlement. Secondly, it increases the moral hazard of people not insuring themselves until they are sick. This keeps many healthy people out of the risk pool and has more sick people in it.
But it is a profound victory for constitutional government. When I was in law school even non-conservatives were stunned by the case of Wickard v. Filburn. In that famous New Deal Supreme Court decision the Court ruled that the government could penalize a farmer for growing corn or wheat on his own farm in a single state and feeding it to his own cows. It could do this under the “commerce clause” which gives the federal government the power to regulate commerce “among the several states.” The court reasoned that if he had not grown his own corn, Wickard would have had to enter the market and so his conduct “affected” commerce. Franklin Roosevelt’s Supreme Court was almost wholly concerned with vindicating federal power in the economic sphere. It did so. The fruit of Wickard is with us still. Just recently the Court upheld federal laws banning the growing of marijuana on your own farm for personal consumption and cited Wickard.
So great were the commerce clause powers, that Congress in the 1960’s enacted many civil rights laws under them rather than the 13th, 14th and 15th amendments. Obamacare has gone one step further. If the individual mandate is upheld it means that not only can the federal government regulate your conduct when you choose to do something, like grow wheat or corn, but when you choose to do nothing and your doing nothing “affects” the market. This means nothing is beyond the federal government’s reach.
The day is devoutly to be wished when Wickard is overturned on its facts because it remains a ridiculous interpretation of the Constitution but until that day comes we can hope Judge Hudson’s distinction is upheld by the Supreme Court. Otherwise, everything that happens or does not happen in the United States will be deemed to be “commerce.” Federal power will be unlimited.
The problem for Obamacare could be fixed by simply taxing everybody to provide health care but giving a rebate to anyone who has bought their own insurance. But that would require politicians to tell the truth about what they are doing and it appears they would rather warp every word in the Constitution rather than take such a step.