Obamacare Supreme Court Primer

March 27th, 2012

Here’s Ezra Klein and Sarah Kliff with everything you need to know about health care reform’s Supreme Court debut.

They provide some good links to analysis of the case. It looks as though most scholars seem to agree that, whether you like the individual mandate or not, there is a ton of Supreme Court precedent that supports the ability of Congress to enact a law like this. The Commerce Clause in the Constitution gives Congress the ability to regulate interstate commerce, and as Bloomberg View puts it

The question is what qualifies as interstate commerce. For most of the second half of the 20th century, the answer has been clear…pretty much anything.

Is a farmer growing wheat for his own consumption engaging in interstate commerce? Yes. A small restaurant in Alabama refusing to seat blacks? Yes. A sick Californian growing her own medicinal marijuana, as allowed by state law? Yes. And so on.

and if these cases are considered appropriate use of the Interstate Commerce Clause, then certainly a requirement that is central to controlling the cost of an industry that accounts for 18% of the economy qualifies as well.

And lest you are tempted to cite the Founding Fathers to denounce requiring purchase of a private good, you would be wise to remember that George Washington signed a bill in 1792 mandating that all free men purchase a gun (Big Government indeed).

Perhaps the most interesting take on the Supreme Court’s decision comes from Dahlia Lithwick, who predicts that the Justices will stay away from a narrow decision striking down the law and keep their powder dry for the upcoming battle to dismantle the Warren Court’s legacy:

They will hear six hours of argument next week. They will pretend it is a fair fight with equally compelling arguments on each side. They will even reach out and debate the merits of the Medicaid expansion, although not a single court saw fit to question it. And then the justices will vote 6-3 or 7-2 to uphold the mandate, with the chief justice joining the majority so he can write a careful opinion that cabins the authority of the Congress to do anything more than regulate the health-insurance market…. And then—having been hailed as the John Marshall of the 21st century—he will proceed to oversee two years during which the remainder of the Warren Court revolution will be sent through the wood chipper.

Lithwick’s analysis sounds about right to me. Say what you will about John Roberts, but you have to admire his ability to smile politely and show the world a reasonable disposition while he works behind the scenes to radically alter the rules of the political system that Americans have come to understand them in the modern era. 

I say he and his team pass on this one so they have a freer hand when the eyes of the country aren’t focused on them.

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