Obamacare: The States’ Rights and Wrongs

Briefs have been trickling into the U.S. Supreme Court in the Obamacare cases. Soon, they’ll come flooding: briefing on the Affordable Care Act’s individual mandate is starting today.

Ceterum censeo: these cases had to be brought as a matter of political hygiene and by way of demonstrating that we’re not Argentina just yet. Admission: I’m a huge fan of Paul Clement and Michael Carvin, who head the plaintiffs’ legal teams. It’s all the more important, though, to recognize that the constitutional arguments in the cases don’t always mesh easily with conservative-libertarian opposition to Obamacare’s policy—or for that matter, with their concerns over the state and trajectory of American federalism. Two examples:

  • An inordinate amount of discussion and agitation has arisen over the ACA’s “individual mandate”—that is, the requirement that uninsured individuals (starting in 2014) must have what the government considers “minimum essential coverage,” enforceable in theory by a penalty. But while the constitutional question of whether Congress has power to enact such a mandate is a big deal, the mandate itself is far too small to affect the ACA’s economics one way or the other. It wasn’t a proto-socialist power grab but a sop to the health insurance lobby on K Street (which needed a fig leaf for selling its members down the road to extinction). Recall, too, that candidate Obama opposed the mandate. Should the plaintiffs now win on the mandate but nothing else, he’ll get his wish.

That said, there’s a potent argument that the mandate, as enacted by Congress, cannot be so neatly separated from other operative parts of the ACA.  The best brief in this vein to date has been filed by Tom Christina of Ogletree Deakins on behalf of the Competitive Enterprise Institute and several health care experts. (Disclosure: I serve as CEI’s chairman, and two of the experts, Tom  Miller and Joe Antos, are my colleagues at AEI.) Worth reading: Mr. Christina understands and explains the sheer nastiness of this statute like no one else.

  • The state plaintiffs claims that the ACA’s expansion of Medicaid unconstitutionally “coerces” them into participating in the federal scheme. In some ways, that’s almost the reverse of the mandate issue: the ACA’s Medicaid expansion is a very big (half-trillion dollar) real-world deal—and the states’ argument has no prayer. For reasons I’ve explained here, moreover, it’s wholly inconsistent with a sensible understanding of our federalism and with any agenda to re-approximate such an understanding.

The upside and perhaps the genius of the hopeless Medicaid claim is to give suitably disposed justices a way to “split the difference.” Dinging the mandate alone would prompt histrionics about a second Bush v. Gore, a supposedly plutocratic Court, and a Tea Party in robes; dinging the states on the Medicaid issue in the same set of cases may give the justices cover. The art is to appreciate the joke—and not confuse it with the merits.

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. Before coming to AEI, Professor Greve cofounded and, from 1989 to 2000, directed the Center for Individual Rights, a public interest law firm. He holds a Ph.D. and M.A. in government from Cornell University, and completed his undergraduate studies at the University of Hamburg. Currently, Professor Greve also chairs the board of the Competitive Enterprise Institute and is a frequent contributor to the Liberty Law Blog. Professor Greve has written extensively on many aspects of the American legal system. His publications include numerous law review articles and books, including most recently The Upside-Down Constitution (Harvard University Press, 2012). He has also written The Demise of Environmentalism in American Law (1996); Real Federalism: Why It Matters, How It Could Happen (1999); and Harm-less Lawsuits? What's Wrong With Consumer Class Actions (2005). He is the coeditor, with Richard A. Epstein, of Competition Laws in Conflict: Antitrust Jurisdiction in the Global Economy (2004) and Federal Preemption: States' Powers, National Interests (2007); and, with Michael Zoeller, of Citizenship in America and Europe: Beyond the Nation-State? (2009).

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Comments

  1. says

    Thanks for your comments! We can agree to diasgree but I’d like to reply. Absolute was a key word in my post. I mean complete freedom without constraints leads to anarchy. Most of us follow rules, obey laws, respect others because we have learned it is best for the community and ourselves. I believe that we must have certain rules/laws because the problems of conflicting self-interests, irrationality, carelessness, and just plain bad people (rapists, murderers, pedophiles, etc.) must be minimized. No offense, but I think your view of human nature expressed above is too optimistic. Think about Rwanda, Darfur, 9/11, violent ideologies of any kind.Regarding lesser freedoms, I don’t feel as though my liberties have been lost due to the Patriot Act or other national security activities. I admit, air travel is not as simple as before, but I can still fly. Where I see my liberties being reduced are encroaching restrictions as to how I live being defined others. Environmental concerns and It’s for your own good groups placing restrictions on what I eat, what I drive, what I read/listen to are advancing at an alarming rate, with unelected bureaucrats and judges making decisions without consensus of the people.I agree that Government tries to manipulate us and has become too large. Yes, there are many in the government that are dispensable and the system has become so polarized and bloated that it can get nothing done. We need to limit government and then find those individuals that truly care about the good of all to lead. Without a respected, effective government I think we get to the point of absolute liberty I started this with.

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