So says federal district court judge Henry E. Hudson. He makes two arguments, and I confess to not understanding either of them.
First, we are not talking about the whole bill. If we were, whoever you are, we could find something in it for you to like (and to dislike). I regard it as a piece of typical conservative legislation: a “market-based solution” that isn’t, and all of those, from our higher education financing system which will someday experience core meltdown and burrow its way to China, to outsourcing the war in Iraq to Blackwater, are always the worst of both worlds, inefficient and unaccountable. But I digress.
A central provision of Obamacare is the requirement that insurance companies not drop coverage because of health problems. This will cost them money. They can only hope to make up for it if people pay in to the insurance market when well, so there must be an incentive for people to buy health insurance when healthy to make up for health insurance companies being unable to drop customers when they’re sick. So to incentivize this, people who buy insurance get a tax break. This has been called, first of all by the Democrats, in their zeal to persuade us that they are more akin to socialists than they really are, “the mandate.”
And it is this which Judge Hudson claims is unconstitutional. Methodological digression: I shall use the word “unconstitutional” to mean “barred by the Supreme Court’s current doctrine.” Please feel free to use it in other ways if you like, but get your own blog first.
The first argument is that the Commerce Clause, which gives Congress the power to regulate interstate commerce, does not authorize ordering people to buy health insurance. Now this is bizarre. Recall the notorious case of Wickard v. Filburn, in which the Supreme Court held that Congress had the power under the Commerce Clause to stop Mr. Wickard from growing wheat on his own land to feed his own chickens. This despite the fact that the wheat was never bought, sold or transported across state lines. The Court reasoned that Congress had the power to regulate his refusal to buy wheat from the channels of interstate commerce (why buy something you don’t need) because of the effect his refusal would have on the economic well-being of those who sell what he was refusing to buy.
If refusing to buy something you don’t need and staying home to mind your own business is interstate commerce, I imagine all sorts of economic abstentions would qualify. I’m not defending this. Like many former law school students, I remember Wickard fondly, like the one time I actually met a schizophrenic. You can dine out on stories like that forever. Now it is true that the Rehnquist Court tried to rein this in a bit, in Lopez and Morrison, by stressing that the subject of the exercise of the power has to be, well, economic. There are limits, sure, but the New Deal Train has left the station.
So Judge Hudson’s argument that the Commerce power under current doctrine does not extend so far as to regulate abstentions from economic activity precisely because of their effect on things economic (the profitability, which is to say viability, of insurance companies, upon which the health of the nation depends) makes no sense. Indeed, it makes so little sense that I can only interpret it as a Hail Mary pass to get Wickard overturned. And for a member of the Supreme Court to be willing to do that would be to be crazy-brave. Which is incompatible with the constitution you must have to get on the Supreme Court in the first place. In case you’ve forgotten, Exhibit “A“. Costless political posturing is what gets you on the Supreme Court. Right Judge?
There is a fallback in the unlikely event that the Commerce argument were successful, and that is that the tax incentive to buy health insurance isn’t a tax incentive at all, it’s a fine. The central case that the Judge cites for this proposition, Department of Revenue of Montana v. Kurth Ranch, is a case involving a statute that “taxes” already seized contraband pursuant to arrest for violating the law against possession of the contraband (marijuana). In that case, we read that “we have cautioned against invalidating a tax simply because its enforcement might be oppressive or because the legislature’s motive was somehow suspect.” We read that “neither a high rate of taxation nor an obvious deterrent purpose automatically marks this tax a form of punishment.” Not a very promising precedent so far. The Court insists that more is needed and mentions the following factors: the tax was an exhorbitant 800% (!), the tax is triggered by the commission of a crime, and the tax is assessed against property the taxed does not own (it having already been seized). Not one of these factors is present in the statute in question. One can only regard this as an invitation to create a new constitutional doctrine, that no taxes whose intent includes anything other than raising revenue are permissible. For anyone on the Supreme Court to accept this invitation would also be crazy-brave.
Would the Founders have liked this statute? Probably not. They didn’t like lots of things (insert gratuitous slavery reference here). Is this how they wanted the Commerce and Taxing powers to be understood? I’m sure not. But it is dishonest to suggest that this statute does not accord with current doctrine, and this is what a federal district court judge is duty-bound to follow. If he had argued instead that most of our Commerce and Tax holdings should be overturned, that would be honest, but incompatible with his job description, which is neither law professor nor candidate. I share his yearnings, but I’m clear enough in my own mind to be able to distinguish yearnings from marching orders, and honest enough to characterize the difference accurately. Much of the public believes that all judicial decision-making is just politics anyway. Judge Hudson has strengthened this belief so corrosive of civic virtue by making it a little more true today.