But not in the bits in-between, apparently. Look at the map – from Heritage’s Foundry. The states in blue are not only opposed to ObamaCare – they’ve all joined the lawsuits to overturn it. And even in many non-blue states, Obamacare is unpopular among the voters (Kentucky, West Virginia…), even if the governor declined to join the litigation.
I don’t know about you, but when I travel I always stay in hotels with pools. I find a morning swim refreshing before a day of business meetings or family obligations. Thanks to the Obama administration, the days of the hotel pool may be numbered. As of March 15, as USA Today reports: “Hoteliers must have pool lifts to provide disabled people equal access to pools and whirlpools, or at least have a plan in place to acquire a lift. If they don’t, they face possible civil penalties of as much as $55,000. ” H/t: Walter Olson @ Cato.
Olson goes on to explain, citing Conn Carroll at the Washington Examiner, that many pool operators initially assumed they could just purchase a portable lift that could be wheeled over to poolside on user request and stored when not in use.
“No such luck: the Obama administration has announced that the lifts must not only be of permanent construction, but must apply to each separate “water feature”, so that a pool with adjoining spa would need two of them. “Each lift costs between $3,000 and $10,000 and installation can add $5,000 to $10,000 to the total.”
Apparently, more than a few hotels are simply opting to “shutter their pools until further notice” rather than incur the legal shakedown by the ADA plaintiffs bar. Under Obama, the regulators have truly gone off the deep end.
Next Tuesday, the Supreme Court hears arguments on the constitutionality of the individual mandate. (The Justices will be coming down from the high of Monday’s argument about the Anti-Injunction Act, described in my earlier post).
The individual mandate is the centerpiece of Obamacare (the Affordable Care Act or ACA). The mandate, officially labeled the “minimum coverage provision,” would require most Americans to obtain health insurance by January 1, 2014, or pay a financial penalty — perhaps as high as $3,000 — with their tax return. The constitutional issue is whether Congress has the authority to impose such a mandate. As we often discuss here on Ricochet, the Constitution grants only certain “enumerated powers” to Congress.
The Obama administration follows the script penned by congressional Democrats, that the ACA is an exercise of Congress’s power to regulate “commerce . . . among the several states.” Granted, unless your doctor happens to live in a different state, most individual healthcare transactions do not take place “among the several states.” Unfortunately, we continue to live under the awful precedents of the New Deal when the Supreme Court held that Congress has the power to regulate economic activity that, in the aggregate, will affect interstate commerce. Most infamously, in 1942, the Court upheld New Deal regulations that dictating the amount of wheat a person could grow for his own family’s consumption! (Wickard v. Filburn). And if the ACA is a constitutional regulation of interstate commerce, then the mandate “is within Congress’s power to enact not because it is a necessary component of a broader scheme of interstate economic regulation.”
As a fallback, the government also argues that ACA is justified under the General Welfare Clause, which has been construed to allow Congress to impose taxes to promote “the general welfare.” For the purposes of this argument, the penalty clause of the individual mandate is a “tax,” even though the President and members of Congress have vehemently denied that Obamacare contains any taxes.
The main brief opposing the individual mandate (submitted by 26 states) points out that forcing people to buy insurance is not a “regulation of commerce.” The main brief says: “The individual mandate rests on a claim of federal power that is both unprecedented and unbounded: the power to compel individuals to engage in commerce in order more effectively to regulate commerce. This asserted power does not exist.” If regulating inactivity were a “necessary and proper” means of regulating commerce, they argue, we would expect to see more of it, but in 220 years, Congress has never required individuals to purchase particular goods or services as a condition of being alive. The government, of course, denies that it is trying to regulate inactivity; rather, they repeat the argument they sold to several lower courts, that the mandate regulates “economic decisions.”
The states also argue against the mandate on the basis of federalism. The individual mandate asserts an authority that “smacks of the police power, which the framers reserved to the states.” This is the basic Tenth Amendment point. In its amicus brief, the Cato institute adds another Tenth Amendment argument: that the individual mandate usurps power from “the people.” Remember, the Tenth Amendment states that the powers not delegated to theUnited States“are reserved to the States, respectively or to the people.” In recent years, the Supreme Court has held that the Tenth Amendment stands for an “anti-commandeering” principle, ie, that the federal government cannot commandeer the state governments to facilitate federal policies. Cato argues (persuasively, in my opinion) that if the anti-commandeering principle protects the states, then it also protects the other beneficiaries of the Tenth Amendment: the people. Surely, the freedom to choose whether and when to buy health insurance is one of those powers reserved to the people.
Note: I have only scratched the surface of the arguments submitted to the Court. There were 80 amicus briefs filed on the individual mandate alone! You can find them at ScotusBlog.
Next week, the Supreme Court will hear arguments on the constitutionality of the new federal health care law, known as the Affordable Care Act (ACA). This is one of the most momentous showdowns in Supreme Court history – the Court’s decision will be a major landmark in determining the scope of federal power. This week, I’m going to preview the four major issues the Court will consider. The first issue is the so-called “individual mandate.”
The individual mandate is the centerpiece of ACA. It creates a legal duty for all individuals in the US to obtain health insurance that meets federal standards by 2014. The constitutional issue is whether Congress has the authority to impose such a mandate. The Constitution grants only certain “enumerated powers” to Congress. In the case of ACA, the government relies mainly on the constitutional power to regulate “commerce . . . among the several states.” Granted, unless your doctor happens to live in a different state, most individual healthcare transactions do not take place “among the several states.” However, the Supreme Court has held that Congress has the power to regulate economic activity that, in the aggregate, will affect interstate commerce. In 1942, the Court upheld New Deal regulations that dictating the amount of wheat a person could grow for his own family’s consumption! (Wickard v. Filburn).
However, opponents of the law point out that Congress has never used its power to compel individuals to purchase a product, whether they want it or not. If they can force us to buy health insurance today – they ask – what’s next? A mandate to eat our vegetables
The Claremont Institute’s Center for the Jurisprudence of Natural Law (which opened last summer) has launched a new online journal: Right Reason. For its inaugural entry, there’s a great piece by Hadley Arkes, “Turning the Tables on ObamaCare: Returning to Natural Rights.”
Arkes argues that opponents of ObamaCare should not focus exclusively on whether the legislation is authorized by the Commerce Clause. I agree — not because I have the slightest doubt that ObamaCare is a million miles from the original meaning of the Commerce Clause — but because I am increasingly pessimistic that we’ll get five votes to abandon the misbegotten precedents that rewrote the Commerce Clause. Thus, Arkes urges opponents of the ACA to look to first principles:
Past the formulas of the Commerce Clause understood and believed mainly by lawyers, there was something elementary that could be understood by ordinary people and caught crisply by Sarah Palin when she saw in this new scheme the immanence of “death panels”: She saw, that is, that any system of national care managed by the government would lead, as it has led in all such systems, to schemes of rationing. One way or another there would be a denial to patients of surgeries and treatment, based on budgets drawn in the aggregate. And the denial would not come from an insurance company, chosen by a customer among several companies, and subject to appeals. The denial would come with the powers of law, from an agency that would have little fear of being corrected from above, by higher authorities.
In other words, conservatives should mount an argument that government-imposed rationing of health care violates “those deep principles of lawfulness that had to be in place in anything calling itself the rule of law.” It is true, as Arkes points out, that conservatives are much more hesitant than liberals to appeal to such higher principles, which may be called “natural law” principles. This, presumably, is because “principles” are easier to manipulate than the text, and thus invite activist judges to make mischief. I am a firm believer in original meaning, but I also believe that certain parts of the text require us to consult higher principles: What is “due process?” What are “privileges and immunities?” What is “cruel and unusual?” And what is “a republican form of government?” — examples of phrases used in the Constitution without definition. I believe that originalists must look to the natural law background of such phrases, but that we must be guided by how they were likely understood by the ratifying public at the time.
In the run up to the SCOTUS argument on Obamacare (beginning March 26!), “the White House is coordinating some public relations stunts to promote the idea that there is broad public support” for the healthcare law, according to NRO. Good luck with that. The latest poll, an AP-GfK Poll, conducted March 8, 2012, found only 35 percent of Americans support the health care law overhaul, while 47 percent oppose it. Meanwhile, Americans overwhelmingly believe the individual mandate is unconstitutional, by a margin of 72 percent to 20 percent, according to a USA Today/Gallup Poll, conducted last month.
Doctors don’t like it either. A survey taken a couple weeks ago finds that 60 percent of doctors think Obamacare will have a “negative impact” on patient care. More depressing (in a nation with a physician shortage), a whopping 43 percent of respondents said they are considering retiring within the next five years because of Obamacare. (ht: Heritage Foundry).
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