Andrew Harrer / Bloomberg / Getty ImagesThe Supreme Court building stands in Washington, Nov. 7, 2011.Listening to the heated rhetoric coming out of Washington, you may think the three days of health care arguments at the Supreme Court that begin Monday morning are about whether President Obama should have the power to force Americans to buy health insurance and order states to double the size of Medicaid through his 2010 overhaul of the health care industry. They’re not.
For all the focus on the Obama in “Obamacare,” the constitutional question before the court is not whether the executive branch has the power to remake the health care market in the United States, but whether Congress does. It was, after all, Congress that passed the law with a supermajority, enacting provisions that will eventually penalize Americans who don’t buy insurance and increase the size of the Medicaid program.
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That’s why many conservative jurists find it difficult to challenge the health care reform law’s constitutionality. On paper, Congress has a lot of power when it comes to controlling commerce in America, and Republican appointees from the D.C. circuit’s Laurence Silberman to former clerk to Justice Antonin Scalia and 5th Circuit conservative Jeffrey Sutton have argued powerfully that Congress is well within its bounds in regulating health care, which represents 1/6th of the national economy.
Article 1, Section 8, Clause 3 of the Constitution, commonly known as the Commerce Clause, gives Congress the power “…to regulate commerce with foreign nations, and among the several states, and with the Indian tribes,” and over the years that power has been found to be very broad. The two most significant precedents for congressional commerce clause power are Wickard v. Filburn (1942) and Gonzales v. Raich (2005).
In Filburn, the New Deal court unanimously found that the government could penalize even the most private economic behavior. The court ruled that an Ohio farmer had to pay a penalty for growing wheat for his own use because not buying on the open market could affect grain prices nationwide. In Raich, Justice Scalia wrote as part of a 6-3 majority that Congress needed the expansive power to ensure that its regulation of drugs nationally wasn’t undermined by California’s permissive dope laws.
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But Congress can’t control every aspect of American life through its power over the economy. In two Rehnquist court precedents, US v. Lopez (1995) and US v. Morrison (2000), the conservative justices tried to rein in places where the Commerce Clause could be used by Congress. In Lopez, the court found activity to be regulated under the clause had to be economic in nature. In Morrison, Rehnquist argued that the Violence Against Women Act went too far in allowing rape victims to sue for civil damages in federal court because doing so would usurp state powers and “create a completely centralized government.”
Justice Anthony Kennedy is always a potential swing vote in close cases like health reform. Because Scalia ruled in favor of expanded commerce clause powers in Raich, the conservative stalwart is seen by some as a possible vote in favor of Obamacare, though his votes in Lopez and Morrison break the other way. Chief Justice John Roberts has been successful in finding large majorities on some controversial issues during his time atop the court. The easiest way to produce that in the case of Obamacare would be to find that a challenge to the individual mandate is premature, as no one has yet been forced to buy insurance, so the extent of any challenge to the law’s constitutionality remains unclear. That would allow both sides of the court to punt on the issue until 2014, when the law comes into full effect.
A ruling is not expected on Obama’s health care reforms until late June. But however the justices probe the case this week, only outside commentators and political activists will be talking about the question of Obama’s power to control the health care market.
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