The justices heard three days of oral argument last week on the case and are not expected to rule until late June. At the heart of matter is the Patient Protection and Affordable Care Act’s requirement that each and every American purchase health insurance or pay a penalty — i.e., whether that requirement is constitutional. Should the Court rule in favor of the act, it would, in the words of Justice Anthony Kennedy last week, “change(s) the relationship of the federal government to the individual in a very fundamental way.” In essence, the act opens the door to unlimited federal power over the individual.
And solicitor General Donald Verrilli, when asked by Justice Sonia Sotomayor last week to define a limiting principle on the individual mandate — and thus, on federal power — was unable to do so. That was not because he couldn’t think quickly enough on his feet, but because he knew there would be no such limiting principle remaining if the act is upheld.
Most liberals, who typically favor large government anyway, seem fine with such an enhancement of federal power. But they should keep in mind that the pendulum of power will eventually swing the other day and at some point in the future the White House and Congress will be solidly in the hands of conservatives, who might decide to pass a mandate on the people that is just as odious to liberals as the health-care mandate is to conservatives. Something along the lines of a requirement that all adult Americans be required to purchase a handgun, to cite a hypothetical example.
The act was crammed down the throat of the American people by a Democratic-led Congress that paid little heed to such objections at the time. Thank goodness that the Court is now doing so. It might decide to uphold the individual mandate; it might decide to overturn the mandate but leave the rest of the act intact; or it might hold that because the rest of the act is predicated on an unconstitutional mandate, the rest of the act should be thrown out as well.
That last, indeed, would be the preferable option, as it would give Congress and the next president, whoever he is, a clean slate with which to work from as they address health-care reform.
No one is saying there is no need for changes to our health care system in order to make care more available and more affordable, but Obamacare was a ruinously expensive, heavy-handed, divisive way of going about them — and we hope the High Court rules it an unconstitutional way as well.