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Supreme Court on Healthcare Mandate: What Else Goes Down?
March 27, 2012
by William P. Meyers

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The conservative judges on the United States Supreme Court would very much like to find that requiring Americans to buy health insurance is unconstitutional. Their problem, if they rule that way, is that it could endanger the legal basis of much of the corporate security state and its control over the economy.

In Department of Health and Human Services v. Florida (No. 11-398), it is being argued by the State of Florida and opponents of the Patient Protection and Affordable Care Act that the federal government, in this Act of Congress, exceeded the powers granted to it by the Constitution. Supporters of the Act will want to rule that it is constitutional, in line with many prior findings, over the course of two centuries, that the Commerce Clause effectively allows for national laws telling citizens what to do or not do about all manner of things.

At the mass media story line level, this case is about whether the federal government can tell a citizen to buy medical insurance, and fine any citizen who does not do so (just $95 per year in 2014, but rising to $695 per year by 2016). Or, and this is important, to put it in the negative: citizens may not walk around without having some sort of medical insurance.

If you think about it for a moment, the federal government tells us we cannot do many things, even if we don't need to cross state lines to do them. We cannot grow, harvest, consume or smoke marijuana, for instance. We may not own heavy armaments. We can't manufacture a fleet of cars that only gets an average of 12 miles to the gallon, nor can we use American Eagles for target practice.

If the Supreme Court says that we cannot be required to buy health insurance, the entire house of cards may collapse. There are a lot of cards that conservatives like, and a lot of cards that liberals like, and probably some cards that both teams like.

The liberal position has consistently been that the federal government has all the power it wants as long as it does not violate certain key sections of the Constitution. The building of this position began in Gibbons v. Ogden, [22 U.S. 1 (1824)], where the Supreme Court decided that individual states could not grant monopolies to steamboat lines that prevented competing companies from offering interstate service. It made a big leap forward when railroads and other trans-state corporations began to be regulated in the late 1800's.

During the New Deal, in the 1930's, the Supreme Court at first resisted, and then admitted (after some changes of personnel), that the power of the federal government to regulate commerce, and anything related to commerce, was virtually unlimited. Famously, in Farmer Filburn (Wickard v. Filburn, 317 U.S. 111 (1942)), the Court ruled that the Department of Agriculture could tell Roscoe Filburn how much wheat he could grow on his private property, even if the wheat itself was not sold, but was used to raise chickens.

The current case is not about States Rights, but has a similar feel to it. Conservatives want federal laws when that helps them get their way, with states rights allowed to stop federal laws they don't like. For once Liberals are completely in agreement: they want federal laws when that helps them get their way, with states rights allowed to stop federal laws they don't like. For instance, when slavery was federal law, liberals wanted states rights to apply so that they could have slavery-free states. Later, when trying to enforce civil rights legislation in the 1960's, liberals were against those very same ideas of states rights, proposed by Democratic Party leaders in the South as a means of preventing segregation.

What we are likely to see is the conservative members of the Court trying to distinguish the Affordable Care Act from other laws that they wish to keep in place, like the marijuana laws and the laws against various tactics that unions would like to use.

We might, in fact, be about to see the Gruel of Law cooked up before our eyes. We may see the pure power of having 5 like-thinking judges on a Supreme Court. They are likely to try to find a way to disembowel the Affordable Care Act while protecting their favorite federal no-nos, like the war on recreational drugs.

I particularly hope that Justice Clarence Thomas writes an opinion. In the liberal-to-left spectrum Thomas is often derided as not just plain wrong, but as beneath the intellectual level as other members of the court. I tend to disagree with Judge Thomas on issues, but I have read a number of his opinions, and found they were well-argued, and illustrate lively intelligence. Thomas dissented in Gonzales v. Raich, in which the majority ruled that the Commerce Clause gives the feds the power to criminalize patients who grow their own medical marijuana. So if he votes against the mandate in the current case, at least he could claim consistency. Ginsburg, Stevens, Kennedy, Souter and Breyer all voted to persecute sick people who use the herb. If any of them (of those still on the court) vote against the Affordable Care Act, they have a lot of explaining to do.

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