The Obamacare Ruling I'd Like to See
I have no idea how the Supreme Court will rule on Thursday in the Obamacare case. So instead I'll tell you how I'd rule.
You probably figure that's easy: I'd vote to uphold the law. And you're right. I would. But I'd go a step beyond that, because I think the justices really do owe it to Congress and the rest of us to articulate a limiting principle that defines the scope and reach of the Commerce Clause.
To explain this, let's back up a bit. As most everyone knows who's been following this case, the Obama administration contends that the Commerce Clause gives Congress the authority to implement an individual mandate that requires everyone in the country to buy health insurance if they don't already have it. In a nutshell, the argument is this: (a) the healthcare market is clearly interstate commerce, (b) Congress has the power to regulate interstate commerce, therefore (c) Congress has the right to regulate the healthcare market, and (d) the mandate is part of a reasonable legislative scheme for regulating healthcare.
Critics, however, argue that forcing people to purchase a commercial product goes beyond Congress's power. The problem is this: there's simply nothing in the text of the Constitution, or in prior precedent, that makes this distinction. The Constitution says Congress has the power to regulate commerce "among the several States." It doesn't say Congress has the power to regulate commerce "among the several States as long as nobody is ever required to buy something." Suddenly plucking this distinction out of thin air without a shred of prior warning, just in time to overturn a major piece of legislation that conservatives happen to dislike, would be outrageously partisan.
But what should be the limit on Congress's commerce power? In Wickard vs. Filburn, which has controlled Commerce Clause jurisprudence since 1942, the court was asked to decide whether Congress could bar a farmer from growing wheat for his own use. The Roosevelt administration argued that even though this was obviously activity within a single state, it affected the amount of wheat the farmer bought on the national market — a market that Congress had the right to regulate. So unlike the Obamacare case, where there's really no conflict with the text of the Constitution to begin with, Wickard clearly required a court ruling. The black letter text of the Constitution gives Congress the power to regulate only interstate commerce, and the question at hand was precisely whether Wickard's private wheat crop did, in fact, constitute a meaningful impingement on interstate commerce. The court had to address this question, and it ruled that Wickard's private activity did indeed affect interstate commerce and that therefore Congress had the authority to regulate it.