- The Washington Times - Sunday, March 28, 2010

ANALYSIS/OPINION:

Even if Republicans take over Congress in November, they’ll probably lack the numbers required to repeal Obamacare over the veto of its namesake. In the short run, then, the only way to fight this massive expansion of federal government is through the courts.

If the Supreme Court dares to rule the legislation unconstitutional, there will be cries from the liberals of judicial activism and political bias. Nothing, however, would be further from the truth.

It’s the members of Congress who, knowing and ignoring the constitutional problems with the health care bill, have put the courts in this unfortunate bind. They played politics and ignored their oaths to the U.S. Constitution.

The most legally problematic provision of the bill is the mandate imposed on individuals to purchase health insurance. The underlying question is whether Congress has the authority under the Constitution to impose these individual mandates. The strongest argument to justify such a mandate would be under the Commerce Clause.

Under the Commerce Clause, Congress does have extensive power to regulate almost any economic activity. Congress even can regulate intrastate commerce if the activities have a substantial effect on interstate commerce.

In 1942, the Supreme Court issued one of its most expansive Commerce Clause opinions. The case, Wickard v. Filburn, involved the federal regulation of the production and consumption of wheat.

The court held that Congress could prohibit a farmer from growing wheat for his own personal consumption. Even though the farmer wasn’t placing his wheat in the stream of commerce, he was substantially affecting the market by growing his own wheat because he wouldn’t buy wheat on the open market.

In 2005, the court heard a similar case called Rich v. Gonzales. The court, instead of reversing Wickard, held that Congress had the power under the Commerce Clause to prohibit individuals from growing medicinal marijuana for their own use. It didn’t matter that the so-called market was an illegal one.

These cases are important because they are the most extreme examples of court deference to legislative power under the Commerce Clause. However, they also are clearly distinct from an individual mandate.

In both cases, Congress is attempting to regulate activities, growing wheat and medicinal marijuana, which has a substantial effect on interstate commerce. There’s no activity being regulated under the individual mandate. In fact, Congress is trying to regulate inactivity.

Wickard and Raich represent the extremes of Commerce Clause jurisprudence. Neither compels the court to hold that an individual mandate falls under the same line of cases. In fact, the court would be pushing its interpretation of the Commerce Clause to a whole new level if it found the individual mandate to be constitutional.

If the mandate is deemed constitutional, Congress could mandate that people buy cars, video games or any other good or service because those purchases would help the interstate market for those goods or services. It would create an absurd result with no logical limit.

For the liberals who might like this result, it probably won’t be as appealing to them if Congress mandated that individuals purchase, for example, handguns, sport utility vehicles, large houses and private kindergarten-through-12th-grade education.

There should be some cautious optimism that the court would strike down the individual mandate. On pure legal grounds, there’s reason to think that at least five justices won’t want to take the Commerce Clause to unprecedented levels.

The bigger concern, though, may have nothing to do with the law. The federal courts may be so deferential to Congress that they won’t want to strike down this excessive abuse of legislative power. Even worse, the Supreme Court may simply want to avoid any political headache by striking down this extremely controversial bill.

The legitimacy of the government has been weakened drastically through the recent actions of President Obama and Congress. The judicial branch will have a chance to restore the people’s faith in our system of government or weaken it even further.

Daren Bakst, a lawyer, is the director of legal and regulatory studies at the John Locke Foundation in North Carolina.

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