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Washington Post: Obamacare Is Constitutional Because It’s Good Policy

3:03 PM, Mar 27, 2012 • By JEFFREY H. ANDERSON
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The Washington Post editorial board essentially writes that, because Obamacare is good policy (in the editors’ estimation), and because it would involve the economy, it must also be constitutional.  Here is the Post’s argument, in its entirety: 

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“[W]e believe the government has the better of the policy and legal case for why the individual mandate is necessary and constitutional.

“Health-care services account for some 17 percent of the country’s gross domestic product; today, the average family pays an additional $1,000 annually in the form of higher premiums to subsidize the costs incurred by those who receive care but do not carry insurance. The mandate is an indispensable tool for achieving the government’s compelling goals of universal coverage and lower costs. Insurance companies would be unable to offer affordable coverage to those with preexisting conditions, for example, unless they also were guaranteed enrollment of the young and healthy customers who are less likely to consume health-care services.

“In the recent past, the Supreme Court has struck down attempts by Congress to use the Constitution’s Commerce Clause to promulgate laws that had no connection to commercial activity, including those involving guns near schools and violence against women. Yet it has upheld Congress’s Commerce Clause power to reach individuals who were not obviously involved in commercial activity — most famously, the Depression-era farmer who grew wheat for his own consumption. The court concluded that his decision to grow — rather than purchase — wheat interfered with the government’s ability to regulate wheat prices.

“The same logic should hold true for individuals able but unwilling to buy health insurance: Their absence has a significant impact on the market, especially because it is virtually inevitable that they will need health-care services at some point in their lives.”

Of course, in that Depression-era case (Wickard v. Filburn), which has always been viewed as marking the outer boundary (and, in many quarters, as plainly exceeding the boundary) of congressional power under the commerce clause, the Court didn’t compel anyone to grow wheat.

In short, the Post’s view appears to be that any congressional action in the economic realm that promotes “compelling goals,” is constitutional.  This is an extremely broad reading of the power to regulate interstate commerce.

Contrast the Post’s efforts with those of the Wall Street Journal editorial board, whose carefully considered constitutional argument doesn’t rely on policy considerations:

“The argument against the individual mandate…is carefully anchored in constitutional precedent and American history. The Commerce Clause that the government invokes to defend such regulation has always applied to commercial and economic transactions, not to individuals as members of society.

“This distinction is crucial. The health-care and health-insurance markets are classic interstate commerce. The federal government can regulate broadly — though not without limit — and it has….But with ObamaCare the government is asserting for the first time that it can compel people to enter those markets, and only then to regulate how they consume health care and health insurance. In a word, the government is claiming it can create commerce so it has something to regulate.

“This is another way of describing plenary police powers — regulations of private behavior to advance public order and welfare. The problem is that with two explicit exceptions (military conscription and jury duty) the Constitution withholds such power from a central government and vests that authority in the states. It is a black-letter axiom: Congress and the President can make rules for actions and objects; states can make rules for citizens.

“The framers feared arbitrary and centralized power, so they designed [a] federalist system…to diffuse and limit power and to guarantee accountability….

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