The Framers of the Constitution created a federal government of limited, enumerated powers. In the words of James Madison, “The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
Throughout the country, federal courts are presently considering whether this original design has any remaining viability. The question before these courts asks: Is Obamacare constitutional?
Regulation of economic transactions, of course, is unremarkable, and Article I of the Constitution gives Congress the power “to regulate Commerce … among the several States.”
Obamacare, however, goes far beyond garden-variety regulation. The law’s centerpiece, the much-maligned individual mandate, compels every American – at the risk of criminal penalties – to purchase health insurance from an insurance company. And therein lies the rub.
It is one thing to regulate all those who choose to engage in an economic activity; it is another thing entirely to force an individual to engage in a particular economic activity in the first place against that person’s will.
Such a shift dramatically alters the nature of congressional power under Article I. The power to regulate something already in existence becomes the power to compel something into existence.
Even the laws we typically conceptualize as mandatory are different than the individual mandate in critical respects. Yes, everyone must pay taxes, but only if they choose to earn an income. Yes, everyone must buy auto insurance, but only if they choose to drive. Yes, criminal law details a whole host of things we cannot do, but it does not say that there are things we have to do.
Obamacare, on the other hand, directs this: Simply by being alive, each of us must do business with an insurance company. This total deprivation of choice is unprecedented in American law and constitutes a form of coercion that poses a significant threat to individual liberty.
Allowing the federal government to exercise this type of unconstrained power removes any pretense that the Constitution limits the reach of Congress in any real way. Words have meaning, and danger looms for all Americans when politicians and judges cast aside the plain meaning of words for short-term, partisan ends.
If the text of the Constitution can blithely be ignored in this way, then it follows that placing faith in that document to safeguard our civil liberties is a grave miscalculation. Our rights devolve to only those that the Supreme Court allows us to have. When this happens, the rule of law gives way to the shifting rule of five-justice majorities on the Court.
And that brings us back to Obamacare. The highly politicized manner that accompanied its passage likely dooms any effort to reach consensus on its constitutionality as the merits of the law have long ceased to matter.
Still, there is hope. Despite the many differences between liberals and conservatives, the two sides do share a distrust of government overreach that sometimes – albeit all too infrequently – overlaps. Perhaps the vast tentacles of Obamacare can awaken this common fear to produce an unexpected unity.
The chief discomforts with the new healthcare law need not – and indeed, will not – be the same. For the conservative, allowing Obamacare to stand would remove any constitutional constraint on centralized regulation as well as obliterating any pretense of state autonomy.
For the liberal, permitting government the power to mandate that every person enter into a contractual relationship with insurance companies gives enormous power to big business at the expense of individuals, especially those presently without insurance on the lower end of the economic ladder.
While the sources of uneasiness in these respective critiques differ and reflect the competing ideological concerns in the liberal and conservative worldviews, both analyses reach the same conclusion: this law goes too far.
The Constitution ultimately protects all of us from the strong hand of government. While we may disagree over the exact contours of these constitutional safeguards, Americans of all political stripes agree that (a) there should be meaningful limits on government and (b) the Constitution should supply these limits.
The individual mandate, however, mocks both of these baseline premises. A federal government that can force its citizens to engage in particular activities is a government unrestrained by the words of the Constitution. Power and politics – not the rule of law – become the order of the day.
Lance McMillian is a Fayette County resident and law professor at Atlanta’s John Marshall Law School.]
