The Contrived Theory of the Obamacare Lawsuit

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The broccoli! I have nightmares about it.Photo: Mark Wilson/2012 Getty Images

The lawsuits to nullify the Affordable Care Act, say conservatives, are about far more than mere health care. They represent a last chance to establish a Constitutional basis for freedom itself. Regulating inactivity “would expand the federal government’s authority over individual Americans to an unprecedented degree,” wrote a pair of Republican lawyers in a Wall Street Journal op-ed that helped launch the legal challenge. A National Review editorial declares, “a federal mandate would expand federal powers still further, and in a way that does not admit of any principled limit.” Right-wing members of Congress, intellectuals, and even legal opinions have buzzed with fearful predictions of a future in which the federal government forces Americans to eat broccoli or buy G.M. cars.

It has been remarkable to watch an entirely new conceptualization of freedom arise from thin air so quickly.

Opponents of health care reform grasped for this concept because the Constitutionality of the Affordable Care Act is pretty simple and obvious. The Constitution lets Congress regulate interstate commerce. Health insurance is interstate commerce. The individual mandate is part of that regulatory scheme. Ergo, it’s Constitutional. The Supreme Court, including some of its sitting conservative members, has previously affirmed sweeping powers in the course of regulating interstate commerce. Antonin Scalia has even ruled that the Commerce Clause allows Congress to forbid someone from growing marijuana for their own personal, medical use. Surely imposing an individual mandate is a more straightforward application of the power to regulate interstate commerce than stomping out a poor guy who wants to grow his own weed.

To escape this precedent, opponents of health care reform crafted an escape clause. All those previous legal precedents regulated activity. The individual mandate is different, they say, because it regulates inactivity. Now, the distinction is factually shaky (there are, in fact, examples of regulating inactivity, like not getting a vaccine or not joining the military.) It’s also conceptually shaky (distinguishing between an action and a lack of action is not so easy, if you think about it.) They emphasize over and over that regulating inactivity is unprecedented. Therefore the Court can ignore reams of precedent and rule pretty much any way they’d like – which, for at least four and probably five justices, means striking down the law.

Now, every new law is in some way unprecedented. (Nobody would bother to pass a law that merely replicated an existing one.) But conservatives want the activity/inactivity distinction to be more than just a handy pretext they cooked up to sever Obamacare from other regulatory schemes. They want the distinction to mean something – not just legally, but philosophically as well.

And so they argue that the freedom of “inactivity,” never imagined before 2009, is the essential bulwark of freedom. Conservatives have been insisting that a government that can require the purchase of health insurance can require anything. Overturning the mandate, and stopping the government from regulating inactivity, is final bridge upon which the right stands against a dystopian future.

As bulwarks of freedom go, however, this one is a little uninspiring. Suppose, as the law’s opponents now insist, the Constitution allows Congress virtually unlimited power to regulate activity, yet virtually no power to regulate inactivity. How much freedom would it guarantee? Not very much.

 The law’s critics, for instance, do not challenge rulings like Wickard vs. Filburn, which allowed Congress to forbid a farmer from growing his own wheat that he did not plan to sell. Of course, growing wheat for personal consumption is an elemental act of human civilization, a definitive act of a person who wishes to provide for himself and be left alone. Not coincidentally, some of history’s most monstrous tyrannies denied individuals the right to grow their own food unmolested – think of Stalin’s Russia, inducing a famine among the productive farmers of the Ukraine, who were forbidden from using their own time to grow their own food.

Indeed, if we imagine a reverse situation – in which conservatives were conceding the government the right to regulate “inactivity” but not “activity” – their hyperventilations over the perilous state of freedom in America would be more persuasive. The line between the laws legitimized by Wickard and real communist tyranny is actually quite thin. Instead they have managed to whip themselves into a frenzy by painting fantastical, concocted stories about the government forcing people to eat broccoli – as if they truly cannot imagine a legal or philosophical principle that would allow the government to enforce a health care mandate (that conservatives invented!) and not allow the government to force-feed broccoli to its population.

Orin Kerr cleverly notes that the hysterics of the right obviously don’t believe, or won’t believe, their own hysteria. They claim that upholding the mandate would mean that there is no Constitutional limit to federal power, but if they lose this case, they will continue to argue that such limits exist. (Randy Barnett, the libertarian who has spearheaded the lawsuit, has performed precisely such a dance before, arguing that a given unfavorable ruling would render the 10th Amendment or the Commerce Clause meaningless, and then, after losing the case, proceeding to insist in subsequent cases that it is alive.) The “regulating inactivity” argument is a pure contrivance.

If it really were the case that the Constitution is constructed to allow the government to forbid nearly any activity in the name of regulating commerce but to prevent it from mandating anything in the name of commerce, it would be a very poorly-designed document indeed.