How to avoid Obamacare (not)

Has the Supreme Court ever served as a bulwark of constitutional liberty when the chips were down? Contrary to popular belief, and the Supreme Court’s own conception of itself, I think the answer is largely negative.
There is a multitude of examples that supports the negative answer. Think of the Court’s First Amendment decision extending First Amendment protection to flag burning while (mostly) throwing in the towel on campaign finance laws limiting political speech at the core of the idea of free speech. Or, to take a classic example, think of the Japanese internment case. All was not lost. Mr. Korematsu’s conviction for evading internment was set aside in 1983.
To take a somewhat more obscure example, think of the Minnesota Mortgage Moratorium case. When the time came to protect creditors against states impairing the right of contract, the Supreme Court abandoned the constitutional protection on the theory that an emergency supported its suspension.
The idea that the Supreme Court will save us from Obamacare is more fitting for Greek drama, with its device of the deus ex machina, than for modern constitutional law. In my opinion, it’s not going to happen.
Nevertheless, the cases challenging the Obamacare law provide a good education in the idea of limited constitutional government and demonstrate the jeopardy in which Obamacare has placed it. To borrow an expression from another of the Supreme Court’s First Amendment mistakes, Obamacare poses a clear and present danger to limited constitutional government.
Philip Klein has an entertaining account of the Obama administration’s defense of the constitutionality of Obamacare’s individual mandate this week in the United States Court of Appeals for the Sixth Circuit. The Sixth Circuit has posted recordings of the arguments in the case accessible here. The arguments to dismiss on procedural grounds are here (30 minutes), and the arguments on the merits are here (65 minutes).
Defending Obamacare in court, Solicitor General Neil Kaytal takes a fun-and-games approach to the notion of limited constitutional government. Questioned in the Sixth Circuit argument on the existence of precedent supporting the Obamacare mandate, Kaytal responded by noting that there’s a provision in the health care law that allows people to avoid the mandate:

“If we’re going to play that game, I think that game can be played here as well, because after all, the minimum coverage provision only kicks in after people have earned a minimum amount of income,” Kaytal said. “So it’s a penalty on earning a certain amount of income and self insuring. It’s not just on self insuring on its own. So I guess one could say, just as the restaurant owner could depart the market in Heart of Atlanta Motel, someone doesn’t need to earn that much income. I think both are kind of fanciful and I think get at…”
Sutton interjected, “That wasn’t in a single speech given in Congress about this…the idea that the solution if you don’t like it is make a little less money.”

Klein comments:

The so-called “hardship exemption” in the health care law is limited, and only applies to people who cannot obtain insurance for less than 8 percent of their income. So earning less isn’t necessarily a solution, because it could then qualify the person for government-subsidized insurance which could make their contribution to premiums fall below the 8 percent threshold.
Throughout the oral arguments, Kaytal struggled to respond to the panel’s concerns about what the limits of Congressional power would be if the courts ruled that they have the ability under the Commerce Clause to force individuals to purchase something.

Poor as the Obama administration’s argument is on this point, it may be good enough for the Supreme Court when it gets around to deciding the cases raising the issue. I am afraid that the fight against Obamacare will be won if it all only on the political battlefield.
Against the arguments advanced by Obama and his minions we have continually to pose Lincoln’s question: “Now, I ask you in all soberness if all these things, if indulged in, if ratified, if confirmed and endorsed, if taught to our children, and repeated to them, do not tend to rub out the sentiment of liberty in the country, and to transform this government into a government of some other form.”

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