Health Care Repeal

Although the Republicans have swept the House of Representatives, they failed to win enough seats for a majority in the Senate. How, then, will they honor their promise to repeal health care? Even if they could muster a handful of votes in the Senate (an unlikely possibility), they could never get past the filibuster or presidential veto. Is this a lost cause? Will the Republicans be able to undo Obama's "socialist" agenda?

Probably not through legislation. However, a number of State Attorney Generals have begun a suit against the federal government, arguing that a number of provisions in Obamacare are unconstitutional. While many of these challenges are likely to fail, I think that the challenge to the provision requiring every American to purchase healthcare (or suffer a penalty) has the best chance to be overturned. Why? Commerce Clause jurisprudence.

Supreme Court jurisprudence on the Commerce Clause has swung widely back and forth in the past century. Beginning during FDR's presidency, partly out of fear of his court packing scheme, the Court began to rule minimum wage laws and other measures by congress as Constitutional. Later, in Heart of Atlanta Motel v. United States, the Court ruled that congress could require, pursuant to the Commerce Clause, motels to treat black guests the same as white guests even if the guests were from in state. Given these precedent cases, it may seem that the Commerce Clause gives congress a blank check to do any and everything it wants.

However, during the 1990's, the Rehnquist Court began to reign in the Commerce Clause. In US v. Lopez and US v. Morrison, the Court ruled that congress' legislation on guns in schools and rape was unconstitutional. The Commerce Clause allows congress to regulate things/persons in interstate commerce, channels of interstate commerce, and things substantially affecting interstate commerce. In Lopez and Morrison, the Court ruled that a kid bringing a gun to school and a man raping a woman did not have substantial effects on interstate commerce because the relationships were "too attenuated."

So what will the Court rule when the health care bill comes up? When I buy health care or don't buy health care do I "substantially affect" interstate commerce? Personally, I think no. The Court is likely to agree. Scalia, Thomas, Roberts, and Alito, the true conservatives on the Court, will strike down the law. Ginsburg, Breyer, Sotomayor, and Kagan will rule in favor of the government. What will Kennedy do? If he follows his own voting in Lopez and Morrison, he will strike down the law. Liberal pundits may scoff at the "radical" or "reactionary" Republican challenges to the constitutionality of Obamacare, but they overlook the fact that the Constitution only enumerates certain powers to Congress, all other powers reside with the states.

When Republicans proposed that Congress should be required to cite each constitutional provision which gives them authority to pass each law, the Democrats opposed them. Why? Did Democrats fear that they would not be able to justify their own measures constitutionally? Or do they not have enough knowledge of the Constitution to find such provisions? Maybe, liberals simply feel so confident in the righteousness of their own agenda that they do not wish to be burdened by an outdated document written by a bunch of dead white men. Either way, if the Supreme Court overturns the health care bill, it will be seen by liberals not as a defence of Constitutional principles, but as an activist conservative Court run amock.