Stephen B. Presser: Obama's health care law opens door to unheard-of federal regulations
Supreme Court's June ruling on this law will be of major importance, Presser says
A decision to uphold the law would strike a deadly blow to the 10th Amendment, he says
Presser: It is now time for the court to reaffirm the limit on federal power
Editor’s Note: Stephen B. Presser is the Raoul Berger professor of legal history at Northwestern University School of Law and a professor of business law at Northwestern’s Kellogg School of Management. He has been involved in several court challenges to the Patient Protection and Affordable Care Act as a signatory on amicus briefs.
The Supreme Court’s decision Monday to review the constitutionality of the Patient Protection and Affordable Care Act (“Obamacare” to its critics) means that in June, it will issue what is likely to be the court’s most important decision in the early 21st century.
The law, for the very first time, in its so-called “individual mandate” provision, virtually obligated all Americans to buy a product (health insurance) whether, in their view, it was appropriate or not. If sustained, the law opens the door to federal regulations of unprecedented scope, and certainly at least raises the possibility of limited consumer choices and an overweening central government.
The United States Congress, or perhaps a federal agency, could, conceivably, force Americans to buy environmentally friendly products, and could force us to take other steps to minimize our health risks (the infamous claim that we may all be ordered to eat our broccoli, or other fruits and vegetables). As I read the opinions of the courts that have examined the issue so far, they all seem to lead to the conclusion that if the federal government can force us to buy health insurance from private parties, there is very little – if anything – that the federal government may not do.
And yet, the 10th Amendment to the Constitution provides that ours is to be a federal government of limited and enumerated powers, and that the state and local governments, the governments closest to the people, are supposed to be the ones charged with the police power, the primary responsibility for protecting the lives of our citizens and ensuring their welfare. A decision to uphold the law would strike a blow to the 10th Amendment from which it could probably not recover.
There are those (and they seem to include most of the law professoriat and most of the Congress) who have already written off the 10th Amendment. And those who have watched burgeoning federal power since the New Deal have acutely observed that the policy of the federal government seems to be, “If it moves, regulate it. If it doesn’t move, then kick it – and when it moves, regulate it!”
The federal government workforce has increased in size under the Obama administration, and the government’s growth has finally reached the point where Republican candidates for the presidency have begun (when their memories serve them) to call for the abolition of particular federal agencies or Cabinet departments. It is very doubtful that an entrenched political establishment and an entrenched bureaucracy would allow this to happen, and thus it becomes crucial for the Supreme Court to remind us about the basics of our constitutional scheme. Toward the end of June, this can and should be done.
Power corrupts, Lord Acton told us, and absolute power corrupts absolutely. We should not be surprised that when the law was originally passed, its proponents, such as then-Speaker Nancy Pelosi, derided those who questioned the law’s constitutionality, asking, as she did, whether they were “serious.” Several serious lower federal courts have found the individual mandate to exceed the powers granted to the federal government, while several others have not, recognizing that there are Supreme Court precedents pointing in the direction of an unlimited federal power.
The Constitution itself, however, in the 10th Amendment, does limit that power, and it is now time for the court to reaffirm that limit. There are some hopeful signs.
Justice Anthony Kennedy, in a decision during the last term, recognized that the 10th Amendment’s principle, known as “federalism,” best protects liberty by placing power closest to the people, rather than in an omnipotent central government. Kennedy is widely thought to be the swing vote on this issue, and, if he sticks to his principles, the 10th Amendment and the liberty it protects will be preserved.
The opinions expressed in this commentary are solely those of Stephen B. Presser.