Like most Americans, I was disappointed in the Supreme Court???s decision to saddle this country with a budget-busting federal health care law that thrusts new taxes on the American people and will most assuredly increase health care costs. Virginia???s legal argument had always been that there was no constitutional basis for the health insurance mandate, and because the mandate was central to the whole scheme, the law should be struck down in its entirety.
But after analyzing the 193 pages of opinions from the court, I contend that ??? while I do not agree with the ultimate result ??? there was a silver lining for those who believe in the principles of limited government. For the first time since 1942, the Supreme Court held that even when Congress is otherwise attempting to regulate commerce, there are enforceable limits to the Commerce Clause power. And for the first time since the New Deal, the court has found a limit on Congress???s spending power ??? a power many thought was virtually unlimited under the Constitution.
From the beginning of Virginia???s challenge, I maintained that the health care cases were about liberty, not about health care. We argued that the Constitution did not permit Congress ??? under the guise of regulating commerce ??? to order a citizen to buy something. A majority of the court agreed with our position. Writing for a majority, Chief Justice Roberts recognized that
???The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years, both our decisions and Congress???s actions have reflected this understanding. There is no reason to depart from that understanding now.??? [Emphasis in the original.]
In its decision, the court affirmed that the Commerce Clause only allows Congress to regulate people who are currently engaged in commercial activity. It does not reach those who are not engaged in commerce, even if those very same people are likely to engage in commerce in the future.
In this way, the court affirmed that there ARE constitutional limits to Congress???s commerce power and explicitly adopted the activity/inactivity distinction that opponents of the law had championed and that liberal commentators had ridiculed.
In addition, the court also has made clear that there ARE limits on Congress???s spending power. The court blocked the federal government from withholding Medicaid dollars that states receive under the current Medicaid program if those states do not want to participate in the new and costly program expansions mandated under the health care law.
Ultimately, the federal health care law was upheld by the court because, contrary to the language used by Congress and contrary to the repeated statements of the president, the court decided that the money one must pay for failing to comply with the insurance mandate should be considered a tax, and a tax is within Congress???s authority. Thus, those who support this law and who voted for it are now and forever on record for supporting this tax increase ??? a position they refused to admit when passing the bill.
Now that the court has declared this a tax, its ruling effectively prevents Congress from using similar schemes to raise taxes while trying to hide them from the American people by calling the exactions by another name. From our founding, the American people have been hostile to excessive taxation. Thus, future Congresses will have to engage in such schemes at their electoral peril.
While the court???s decision has the consequence of upholding a terrible law, it also delineated limits to Congress???s power on which future Supreme Court decisions can build. It is now up to the people to elect a president who will appoint justices who will solidify the limits to Congress???s power that were delineated.
Those who doubt the importance of presidential elections should ponder Justice Ginsburg???s dissent in which the three other liberal justices joined. That opinion would turn our federal republic ??? one in which the states and the federal government share power to keep a check on one another for the purpose of preserving liberty ??? into a consolidated unitary government. The liberal justices??? vision for America is one where Congress has total authority to command citizens to do whatever it wants, subject only to the limitations expressed in the Bill of Rights.
In the wake of this decision, it becomes incumbent on the American people to work to elect leaders who recognize and value constitutional limits on government power. It is up to the people to elect a new president and new conservative majority in the Senate to repeal this horrendous law and work on real health care reform — reform that will get government out of the way, use market forces to drive down costs and increase accountability, and finally let citizens make their own decisions about their health care.