The Nuts and Bolts of the ObamaCare Ruling
According to the government’s theory, wrote Judge Vinson, ‘the more harm the
statute does, the more power Congress could assume for itself under the
Necessary and Proper Clause.’

By RANDY E. BARNETT AND ELIZABETH PRICE FOLEY

For months, progressives smugly labeled the legal challenges to ObamaCare
as “silly” or even “frivolous.” Today their confidence must be severely shaken.
Late Monday afternoon in Pensacola, Fla., U.S. District Court Judge Roger
Vinson delivered the second major judgment that the centerpiece of the
Patient Protection and Affordable Care Act—the “individual mandate” that
forces Americans to buy health insurance whether or not they want it—is
unconstitutional. In December, District Court Judge Henry Hudson ruled
against the mandate in a separate lawsuit brought by the state of Virginia.
But Judge Vinson’s sweeping and powerfully reasoned decision this week
went much further, striking down the entire health-reform law on the
grounds that the individual mandate was not severable from the
rest of the statute. And the plaintiffs in Judge Vinson’s courtroom
included the attorneys general of 26 states, not just one. His opinion
thus casts a dark shadow over ObamaCare until the Supreme Court
issues a final ruling on the matter.

Consider the problems posed by the insurance mandate. The Obama
administration argued that it was supported by the Commerce Clause,
which gives Congress the power to regulate interstate commerce. True
enough, insurance is commerce, but not buying insurance is the antithesis
of commerce. Commerce has always been understood as requiring
economic activity. This was the rationale Judge Hudson adopted in striking
down the individual mandate in the Virginia case. The government’s
lawyers in the Florida case insisted that not buying health insurance
was somehow different from a failure to buy other products like clothes
or food. They said health insurance was “unique” because, eventually,
everyone will seek and obtain health care. And if they aren’t insured, the
costs will be shifted onto others, thus substantially affecting commerce.

Judge Vinson rejected this argument, recognizing that “not consuming” other
products, such as food, is also unavoidable and can have substantial effects on
other commercial markets. “There is quite literally no decision that, in the natural
course of events, does not have an economic impact of some sort,” he wrote.
“The decisions of whether and when (or not) to buy a house, a car, a television,
a dinner, or even a morning cup of coffee also have a financial impact that—when
aggregated with similar economic decisions—affect the price of that particular
product or service and have a substantial effect on interstate commerce.”
Recognizing the vulnerability of relying on the Commerce Clause alone, the
Obama administration in the Florida case shifted its emphasis to the Necessary
and Proper Clause of the Constitution. That clause empowers Congress to enact
“all Laws which shall be necessary and proper for carrying into Execution” its
enumerated powers. As the Supreme Court has repeatedly explained, the
Necessary and Proper Clause does not expand the scope of Congress’s
enumerated powers. Instead, it gives Congress the ability to select among
various means of exercising them—for example, the enumerated power to
“establish post offices” necessarily and properly includes a power to print
stamps.

The Obama administration claimed that the individual mandate is a necessary
and proper means of carrying out its reforms in the health-insurance market.
These reforms include requiring insurers to offer coverage to those with
pre-existing conditions, to extend coverage to dependents up to age 26,
and to eliminate lifetime coverage caps. Because these reforms make health
insurance more expensive, the government’s lawyers claim that unless
everyone is forced to buy health insurance, too many healthy people will sit
on the market sidelines as “free riders” until they become ill. So in order to
make the “reformed” health-insurance market work, it’s necessary and proper
to force everyone to buy insurance. Judge Vinson flatly rejected the
administration’s attempt to escape the restrictions of the Commerce Clause
by appealing to the Necessary and Proper Clause. His decision acknowledges
that, while reforming an insurance market is a regulation of commerce,
Congress cannot artificially create its own “free rider” crisis in the insurance
market and then use that crisis to justify an otherwise unconstitutional
mandate as “necessary and proper” to save the market from collapse.
This novel use of the Necessary and Proper Clause, if allowed to stand,
would fundamentally transform our constitutional scheme from limited to
unlimited federal power, narrowing the scope of individual liberty. In Judge
Vinson’s words, “the more harm the statute does, the more power Congress
could assume for itself under the Necessary and Proper Clause. This result
would, of course, expand the Necessary and Proper Clause far beyond its
original meaning, and allow Congress to exceed the powers specifically
enumerated in Article I.”

Rep. Marsha Blackburn on the health-care ruling. One crucial difference between
the Florida and Virginia decisions relates to the breadth of the remedy. While
both courts agreed that the individual mandate was unconstitutional, the Virginia
decision merely declared the mandate alone to be unconstitutional—the rest of
ObamaCare was unaffected. But Judge Vinson concluded that the individual
mandate could not be “severed” from the rest of the law, and so the entire law
must be struck down. The judge had little choice: The Obama administration
itself argued that the individual mandate was inextricably intertwined with the
rest of ObamaCare. So if the mandate fell, the whole scheme was doomed to
collapse as a legal matter. “There are simply too many moving parts in the
Act and too many provisions dependent (directly and indirectly) on the individual
mandate and other health insurance provisions,” he held, “for me to try and
dissect out the proper from the improper, and the able-to-stand-alone from
the unable-to-stand-alone.” The Obama administration attempted to cloak
an unprecedented and unsupportable exercise of federal power in the guise
of a run-of-the-mill Commerce Clause regulation. When the weakness of
that theory was exposed, it retreated to the Necessary and Proper Clause
and the taxing power. Judge Vinson’s decisive rejection of all these theories
is another significant victory for individual liberty—the ultimate purpose of
federalism—and it lays the intellectual groundwork for every decision on the
mandate yet to come.

Mr. Barnett is a professor of constitutional law at Georgetown University Law
Center.

Ms. Foley is a professor of constitutional and health care law at
Florida International University College of Law.

Published in the Wall Street Journal and available at:
http://online.wsj.com/article/SB10001424052748703445904576117913097891574
.html?KEYWORDS=Foley+ObamaCare

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