In October 2009, a reporter asked then-House Speaker Nancy Pelosi, "Where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?" She responded, "Are you serious?" Few questions could be more serious, and this week, the Supreme Court is spending three days exploring this and several other questions about the legitimacy of Obamacare, the president's signature achievement and the largest expansion of government in generations.
This case is not about health care policy but about whether we still have a real Constitution. Two principles are at stake. First, as George Washington put it in his farewell address, the basis of our system of government is that "the Constitution ... till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all." Second, as the Supreme Court put it in Marbury v. Madison seven years later: "The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written." This case is about whether our written Constitution still defines and limits federal power until the people say otherwise.
Measured by that standard, Obamacare's insurance mandate is unconstitutional. This is the first time in American history that Congress is forcing Americans to purchase a particular good or service. More important than identifying a precedent for the mandate, however, is identifying a power for Congress to enact it. The only candidate is the power to regulate interstate commerce. The insurance mandate does not regulate commercial or commerce-related activities but decisions whether to engage in those activities.
Decisions whether to purchase goods or services obviously have economic consequences, and Congress uses incentives to influence purchasing decisions. Remember the "cash for clunkers" program? But if Congress has the power to dictate purchasing decisions, it simply could have required Americans to purchase new cars to help the auto industry. The difference between activities and decisions, between incentives and mandates, is far more than a difference of political degree; it is a difference of a constitutional kind.
When Obamacare became law two years ago, its backers said its policy and constitutional merits would become plain for all to see. Once people heard the arguments and got the facts, they said, resistance would soon fade away. Well, what do the Obama administration, congressional Democrats and their liberal grass-roots allies have to show for two years of relentless campaigning? The latest Gallup polls tell us that after all the effort, more Americans say Obamacare is a bad idea and fewer say it is a good idea than two years ago.
Perhaps more important, nearly three-quarters of Americans now think the Obamacare insurance mandate is unconstitutional, the highest level ever. A majority of Democrats and even a majority of those who think Obamacare is a good idea say the insurance mandate is unconstitutional.
In a brief filed with the Supreme Court, 42 of my Senate colleagues and I point out that "it is hard to imagine any private decision not to purchase a particular good or service that does not have some economic impact when aggregated among millions of people. Under that rationale, the government could mandate any commercial activity." It should take more than an imagination and a political agenda to properly interpret and apply the Constitution.
Our country will always face challenges. Partisan majorities and ideological agendas will come and go. But we must always protect the liberty that our system of government and our written Constitution make possible. President Andrew Jackson said eternal vigilance is the price of that liberty. This case is about whether we will pay that price, whether we will insist that government submit to the Constitution rather than try to remake it in government's image. That is indeed a very serious matter.
Sen. Orrin G. Hatch is ranking member of the Senate Finance Committee and a current member and former chairman of the Senate Judiciary Committee.
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