Advancing a Free Society

The Dubitable Constitutionality of the Affordable Care Act

Tuesday, March 27, 2012

By now everyone knows that the Supreme Court will take up the watershed case of this century, when it examines the constitutionality of the Patient Protection and Affordable Care Act—the ACA or ObamaCare to both the friends and enemies of the Act. I have coauthored with Mario Loyola of the Texas Public Policy Foundation a brief that sets out our case against the constitutionality of the Act.  I have also written elsewhere about the complex historical evolution of the commerce clause.

I am relieved to learn, after all, that the case against the individual mandate is so trivial that three eminent legal authorities, Jeffrey ToobinLinda Greenhouse and Dahlia Lithwick, found it easy to put me out of my intellectual misery by announcing that the act is manifestly constitutional on the indubitable authority of Wickard v. Filburn, which in their view has become the constitutional pillar of a boundless federal power.  Indeed, their collective wisdom is such that the case for the constitutionality of ObamaCare is so self-evident that only dark political motives can account for the willingness to overturn a statute whose impeccable social credentials make it the culmination of a long overdue reform movement.

Let me confess to be one of the unpersuadables.  There is of course a powerful correlation between those who praise ObamaCare and embrace its constitutionality.  There is none of the typical posturing which says that we'll leave it to Congress to deal with the wisdom of the laws while we merely determine their constitutionality.  However on this question, turnabout is fair play, for we should look at the wisdom of statutes, or their lack thereof,  in order to orient ourselves with respect to their constitutionality.

Start with Wickard, which in soothing terms had as its objective the “stabilization” of agricultural markets under the Agricultural Adjustment Acts, by allowing the government to even out prices during good times and bad.  All that is a polite way of saying that the government should get into the business of organizing agricultural cartels, which can then reduce output by burning excess crops or forcing land to remain idle in order to reduce supply. At the other end of these cartels lie consumers, who suffer manifestly from the high prices and reduced supply that made it all the harder for them to weather the 1930s depression.  Roscoe Filburn was a cartel-breaker because he sought to escape the regulation and increase supply by feeding his own grain to his own cows.

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