Obama won by losing: Thoughts on the health care decision


President Obama won by losing on Thursday.  Yes his health care legislation was upheld but it came at the expense of federal power and perhaps further losses down the line in terms of civil rights and other forms of federal power. The media will report that by a 5-4 decision the Supreme Court affirmed the individual mandate and upheld the Obama Health Care Act.  But a tighter and more thorough reading demonstrates this to be a very conservative decision and Obama lost big legally.

Congress passed and the Obama administration defended the Patient Protection and Affordability Care Act primarily on Commerce Clause grounds.  Their argument was that Congress under the Commerce clause (giving them the power to regulate interstate commerce) justified the imposition of the individual mandate.  They cited an important 1938 New Deal case Wickard v. Filburn as precedent.  Five justices rejected this argument.  Chief Justice Roberts along with the four dissenters contended that Congress may not compel an individual to buy health insurance because individuals who do not have insurance where not engaged in the activity of interstate commerce.  Instead, the individual mandate compelled them to enter commerce.  They used this argument to distinguish this health care regulation from the regulation in Wickard where in that case a farmer was growing wheat for personal consumption and not sale and the Court said that this still constituted commerce.  In that case the farmer was doing something, here people who do not buy insurance were not engaged in commerce.

The broccoli argument here was persuasive.  Roberts alluded to broccoli once and the dissenters specifically mentioned it 12 times in their opinion.  They agreed that by the logic of the Obama administration the federal government could force us to buy broccoli because it is good for us.  Thus, the individual mandate to buy health insurance is not something that the federal government can do.

Yet the backup argument by the Obama administration was that Congress’s power to tax saved the mandate.  Yes, sort of.  Roberts again drew on another landmark New Deal case United States v. Darby.  Here a New Deal Court affirmed a law under Congress’s taxing power to regulate and eliminate child labor.  In the health care case on Thursday Justice Roberts and the four liberals affirmed the individual mandate as a tax.  They contended that no one is required to buy insurance  but if they do not then they have to pay a tax.  Thus, contrary to media reports, Congress cannot compel us to buy health insurance, but they can tax us if we do not.

Some may state this is a difference that does not make a difference.  This is not true.  The four liberals on the Court would have affirmed the individual mandate on Commerce clause grounds in addition to the tax claim but Roberts only supported it on taxing power.  What are the implications?  In the last 50 or so years major legislation on civil rights and many other regulatory issues have been affirmed in part on Commerce Clause grounds.  This decision today actually trims back the Commerce Clause power of the federal government, raising questions about the Voting Rights Act and other civil rights legislation in the future.  This is the case both because of a weakened Commerce Clause and also because it suggests a Court perhaps less sympathetic of federal power than thought.  All this is significant especially in light of state challenges to legislation in these areas.

Yes, Obama got a win on Thursday.  He had a good week.  Housing prices are going up, gas prices going down, and he has clear leads in Ohio, Florida, and Pennsylvania.  He won the Arizona case too. But the health care victory is a pyrrhic one at best.  It is not a major expansion of federal power but a contraction.  Justice Roberts gave the president very little and he actually was a genius.  He agreed with most of the conservative dissenters while making it look like the Court is above politics and in the process preserved its institutional image.  Obama won by losing today.