Like conservatives, law professor David R. Dow thinks it’s disappointing that the Supreme Court vote on the constitutionality of the Obamacare individual mandate will likely fall along partisan lines — but his disappointment stems from his utter conviction that the individual mandate is constitutional.
He’s so convinced of it that he thinks any Supreme Court justice who votes to overturn Obamacare should be impeached. He cites Thomas Jefferson’s call to impeach Justice Samuel Chase as an historical reminder that impeachment is and should be an option for justices who undermine constitutional values. I agree with him that impeachment of justices is itself constitutional — but what constitutional principles, exactly, would the Supreme Court be undermining if they vote against Obamacare?
Dow’s argument that the individual mandate is constitutional is exactly what you would expect: If you are going to voluntarily do something (e.g. drive a car), the government can make you purchase a product (e.g. insurance) provided it has a good reason for doing so (e.g. making sure you can pay for any damage you do). This argument might make some sense if the activity for which Obamacare mandates insurance was something more than merely existing.
But Dow takes it a step further by arguing that the Constitution doesn’t just grant the federal government the power to regulate commerce, but that it also, in fact, grants the federal government the power to guarantee medical coverage for the poor and to implement a system to pay for it. He writes:
[C]ritics of the health-care law say the only reason the rest of us have to pay for medical services used by people who have no money is that laws require hospitals to treat people who come in for emergencies regardless of their ability to pay. In other words, the critics say, the only reason there is a social cost—the only reason the syllogism works—is because of the underlying laws requiring hospitals to treat the poor.
Unlike silly examples involving broccoli and cell phones, that so-called “bootstrap” argument is sound. But here the critics drop their ideological mask as surely as the court dropped it in the Gonzales ruling. Their argument can be restated thusly: if you repeal laws requiring hospitals to treat the poor, you eliminate the constitutional basis for mandatory insurance coverage.
You don’t have to pull the analytical thread of that reasoning very hard to see that it boils down to an argument for allowing the poor to die. And if the Supreme Court strikes down the health-care law, that is exactly the ideology it will have to embrace. It will be saying that Congress cannot guarantee medical coverage for the poor and then implement a system to pay for it. In other words, the only people entitled to health care are the people who can afford it.
The last time the court went down this path, saner heads prevailed. Oliver Wendell Holmes’s view was historically and constitutionally correct, and the court finally acknowledged this in a pivotal 1937 case, West Coast Hotel v. Parish. In West Coast Hotel, the court ruled that the Constitution safeguards not just individual liberty but community interests as well; and in matters of economics, it is the legislature’s job to strike the appropriate balance between those two. If the Roberts Court overturns the Affordable Care Act, it will be mimicking the discredited court of 1935.
All of this completely ignores that ours is a federalist government, with the powers not expressly granted to the federal government reserved to the states. Nobody has ever argued that the institutional mandate is unconstitutional at the state level — noxious to freedom-loving Americans, perhaps, but not unconstitutional. Ann Coulter famously pointed that out in her eye-opening article, “Three Cheers for Romneycare!” So, Dow might be right that that the Constitution provides government with the power to guarantee medical coverage and to implement a system to pay for it — but that power would exist at the state level. Nowhere does the Constitution enumerate that as a power of the federal government — and the Constitution clearly reserves unenumerated powers to the states.
Just as Obama’s statement that it would be “unprecedented” for the Supreme Court to declare a law unconstitutional was over the top, so, too, is Dow’s suggestion that the Supremes face impeachment if they overturn Obamacare. The nine Supreme Court justices are carefully considering an extremely weighty question and they all clearly take the responsibility seriously. It’s for us, at this point, not to issue premature accusations of judicial activism or calls for impeachment, but to let the Supreme Court justices do their job.