And that's a shame, since it would keep New Deal precedents in place.
Jonathan Neal, a senior at Howard University, plays his trumpet in support of health care reform in front of the Supreme Court in Washington, Wednesday, March 28, 2012, on the final day of arguments regarding the health care law signed by President Barack Obama.
President Obama's signature piece of legislation, the Patient Protection and Affordable Care Act, is now at the mercy of nine justices likely to produce a 5-4 decision. To be sure, both sides of the political spectrum in this hyperpartisan election year are hoping for vindication. But there's reason to believe the Supreme Court's verdict may be more nuanced than anything else.
While District Court Judge Roger Vinson of Florida ruled enthusiastically for the then 26 states challenging Obamacare on federalism grounds, the 11th Circuit in Atlanta found only the bill's requirement to carry health insurance unconstitutional. Other appeals courts have upheld the mandate, but until now, the nation has yet to receive a definitive ruling on the entirety of the two-year-old law.
And that's what scares liberals the most.
Even though it's unlikely, the Supreme Court has the potential of upending 75 years of New Deal judicial activism. Consider the issue that's getting all the attention, the federal edict forcing Americans to buy health insurance or pay a fine (er ... ah, tax, depending on what day it is for Obamacare defenders). The administration says this amounts to little more than regulating interstate commerce, a power specifically enumerated in the Constitution.
But just what economic transaction is it attempting to regulate when someone chooses not to purchase insurance, or any other product for that matter? If Washington can require health insurance, the court suggested this week in an unprecedented six hours of oral arguments, what's to stop it from forcing Americans to buy cellphones or broccoli -- virtually anything the feds say has an "effect" on commerce?
After all, as District Judge Vinson noted, "there is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort." So if that is the only rationale the federal government needs to regulate the internal affairs of its citizens, then its power to control is unlimited.
Imagine: If all Congress had to do was to cite the Commerce Clause for whatever it passes, why did we bother to amend the Constitution in order to ban "the manufacture, sale or transportation of intoxicating liquors" during Prohibition? Why didn't we just pass a law? I'll tell you why: Because, in those days, the Constitution still required some intellectual honesty.
That all changed with FDR's New Deal and a series of rulings designed to circumvent the document. By 1942, the constitutional coup d'etat was complete. In Wickard vs. Filburn, the Court ruled that homegrown wheat for personal consumption (outside the bounds of commerce, let alone interstate) was subject to federal regulation because the "commerce power was not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which affect interstate commerce ..."
Can you imagine applying the same specious reasoning to the congressional prerogative regulating commerce with foreign nations -- listed in the very same clause as the interstate power? That is, the idea that we could legally control another country's domestic policy due to its effects on foreign trade? So much for sovereignty.
Alas, instead of overturning the entire scheme outright, the court is more likely to narrowly rule (stare decisis and all that) that since refusing to buy health insurance lacks the nexus of commercial activity, a federal mandate is without justification. This has the political convenience of leaving in place the New Deal precedents granting plenary power to the feds once any economic activity actually commences (think light-bulb mandates).
That's more than a shame because federalism, as Justice Anthony Kennedy -- the likely swing vote on Obamacare -- put it in the court's unanimous verdict in Bond vs. United States, "protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions," thus securing "to citizens the liberties that derive from the diffusion of sovereign power."
Jason Lewis is a nationally syndicated talk-show host based in Minneapolis-St. Paul and is the author of "Power Divided is Power Checked: The Argument for States' Rights" from Bascom Hill Publishing. He can be heard from 5 to 8 p.m. weekdays on NewsTalk Radio (1130 AM) or online at jasonlewisshow.com.