It was two years ago today that the Patient Protection and Affordable Care Act was signed into law. Well, there were actually two bills, due to some of the parliamentary trickery needed to pass the final thing. Of course, critics were then already pointing out its dubious constitutionality. The Congressional Research Service had already published a report observing that Congress likely has no constitutional authority simply to force people to buy a product or service. The PPACA’s defenders, of course, laughed to scorn such petty insinuations about the law’s constitutionality. Members of Congress ridiculed people who raised the question, or gave answers that demonstrated with humiliating clarity their own lack of constitutional literacy.
Then came the lawsuits, and in December, 2010, a federal court in Virginia struck down the law. Not long after, a federal court in Florida agreed, holding the law unconstitutional in a thorough opinion that is now before the Supreme Court. Then came a federal judge in Pennsylvania striking down the law, while judges in Michigan and Virginia upheld it. Today, as PPACA enters the Terrible Twos, the Sixth Circuit Court of Appeals, in a 2-1 decision, has upheld the law; the Eleventh Circuit, in a 2-1 decision, has struck it down; the D.C. Circuit has unanimously upheld it; the Fourth Circuit has dismissed two challenges to the law on procedural grounds, and courts in Arizona, Washington, D.C., and elsewhere, are still considering the issue—and the U.S. Supreme Court will soon start an historic three days of oral argument over this law’s constitutionality. It’s an amazing time to be practicing constitutional law.
As we’ve seen, the main issues revolve around the Commerce Clause, the Necessary and Proper Clause, the Tax Clause, and the Spending Clause. At issue is the unavoidable clash between, on one hand, the legacy of judicial precedents dating to the New Deal era, which fashioned Rube-Goldberg-style interpretations of the law in order to rationalize massive expansions of federal authority—and, on the other, a Constitution written with the express purpose of limiting the federal government to a relatively short list of identified powers, in order to protect our freedom.
In the coming days, Americans will hear some of the nation’s brightest attorneys making some sophisticated, deeply researched, eloquent arguments—and the questions involved…well, none of them are easy. But I think it’s time to pause a moment and reflect on how fortunate we are.
We live in a country, and under a Constitution, that allow these heated debates to go forward—a country where the federal government doesn’t automatically get its way—where people can still hold up the Constitution as a shield against government power—where there is still hope that although we have in some senses has lost our way, we can still regain it. Whatever the Supreme Court’s ultimate decision, the last year of constitutional debate and controversy has been profoundly good for the United States. Because while the cases might be argued by the nation’s legal elite, the Constitution itself is not their property. It is the property of ordinary Americans. It is written in plain language for the ordinary person, and it is the ordinary person who must stand for its principles, perpetuate its legacy, and defend it, even from the legal elite, who are so often tempted to pervert its principles with cleverness. We are lucky indeed to have a culture where that enterprise is still taken seriously and treated with respect. And we at Pacific Legal Foundation are grateful for the opportunity to have been such a major part of that undertaking.
I will admit, I entered the Obamacare cases very pessimistically. But now I am convinced that whatever the ultimate decision, this process has been a greater benefit in the long run to this country than any political movement in the last two or three decades. So, here’s to you, Obamacare. More than any other piece of legislation in memory, you have sparked a healthy national introspection. You have turned the attention of millions of ordinary people back to where it should have been all along: to our national ideals and our founding documents. This is only the beginning, I believe, of a long process of restoring respect for our constitutional principles of limited government, free markets, and individual rights. I believe this entire debate has been a great step toward rescuing liberty from coast to coast.