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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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“These federalist protections have endured despite the shifting definition and scope of interstate commerce and activities that substantially affect it. The Commerce Clause was initially seen as a modest power, meant to eliminate the interstate tariffs that prevailed under the Articles of Confederation. James Madison noted in Federalist No. 45 that it was ‘an addition which few oppose, and from which no apprehensions are entertained.’ The Father of the Constitution also noted that the powers of the states are ‘numerous and infinite’ while the federal government's are ‘few and defined.’

“That view changed in the New Deal era as the Supreme Court blessed the expansive powers of federal economic regulation understood today….

“The Court, however, has never held that the Commerce Clause is an ad hoc license for anything the government wants to do….

“A thread that runs through all these cases is that the Court has always required some limiting principle that is meaningful and can be enforced by the legal system. As the Affordable Care Act suits have ascended through the courts, the Justice Department has been repeatedly asked to articulate some benchmark that distinguishes this specific individual mandate from some other purchase mandate that would be unconstitutional. Justice has tried and failed, because a limiting principle does not exist.

“The best the government can do is to claim that health care is unique. It is not. Other industries also have high costs that mean buyers and sellers risk potentially catastrophic expenses — think of housing, or credit-card debt. Health costs are unpredictable — but all markets are inherently unpredictable. The uninsured can make insurance pools more expensive and transfer their costs to those with coverage — though then again, similar cost-shifting is the foundation of bankruptcy law....

“Another Administration fallback is the Constitution’s Necessary and Proper Clause, which says Congress can pass laws to execute its other powers. Yet the Court has never hesitated to strike down laws that are not based on an enumerated power even if they’re part of an otherwise proper scheme. This clause isn’t some ticket to justify inherently unconstitutional actions….

“The crux of the matter is that by arrogating to itself plenary police powers, the government crossed a line that Justice Anthony Kennedy drew in his [U.S. v.] Lopez concurrence. The ‘federal balance,’ he wrote, ‘is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene when one or the other level of government has tipped the scale too far.’…

“The stakes are much larger than one law or one President. It is not an exaggeration to say that the Supreme Court’s answers may constitute a hinge in the history of American liberty and limited and enumerated government. The Justices must decide if those principles still mean something.”

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