Articles

To uphold the individual mandate as an exercise of the taxing power, the majority overlooked the natural meaning of the statutory text.

By DAVID B. RIVKIN, JR. AND LEE A. CASEY

The Supreme Court's ObamaCare decision is both a triumph and a tragedy for our constitutional system. On the plus side, as we have long argued in these pages and in the courts, the justices held that Congress's power to regulate interstate commerce cannot support federal requirements imposed on Americans simply because they exist. The court also ruled that there are limits to Congress's ability to use federal spending to force the states to adopt its preferred policies.

However, in upholding ObamaCare's mandate that all Americans buy health insurance as a kind of "tax," the court itself engaged in a quintessentially legislative activity—redrafting the law's unambiguous text. The court struck down ObamaCare as enacted by Congress and upheld a new ObamaCare of its own making.

Congress grounded ObamaCare's individual insurance coverage mandate in its power to regulate interstate commerce, supported by the Constitution's Necessary and Proper Clause, which permits Congress to make all laws "necessary and proper" for carrying into effect its various enumerated powers. It relied on these constitutional provisions so as to avoid the clear political costs involved in simply raising taxes to create the universal health-care system ObamaCare's backers really desired.

ObamaCare defenders, in the courts of law and public opinion, have been pressing these points for the last two years, and they lost. A majority of justices ruled that the Commerce Clause, even in conjunction with the Necessary and Proper Clause, cannot support federal regulation of "individuals as such, as opposed to their activities."

This is a profound and highly significant reaffirmation of the Constitution's federalist structure, which assigns only limited and enumerated powers to the federal government and reserves the power to enact broad health and welfare regulations to the states. Here, the court clearly rebuked Congress, sending a very clear message: There are judicially enforceable limits to your power.

Equally important, the court also ruled that the federal government cannot use its spending power to coerce the states into adopting federal programs and requirements. As originally enacted, ObamaCare required the states to expand their Medicaid programs so that they would cover those with incomes far above the federal poverty line. This would have shifted untold costs to the states, with the federal government paying these costs only for a limited time. The alternative that states faced was the loss of all federal Medicaid funding. Seven justices ruled that, applied in this manner, the law was unconstitutional and rewrote it to avoid this outcome. As a result, this federal hammer can no longer be used to force the states to support ObamaCare's Medicaid expansion.

This is significant. Since deciding Steward Machine Co. v. Davis in 1937, the Supreme Court has maintained that the Constitution limits Congress's power to coerce the States through federal grants, but it has never identified the boundaries between the permissible use of federal funding as a carrot and unconstitutional federal coercion. The ObamaCare decision began to draw those lines, putting real limits on Congress's ability to use the states as simple administrative units to carry out its will.

On the debit side, the court upheld ObamaCare's individual mandate as an exercise of the federal taxing power. The law was not passed as a tax, and both the president and ObamaCare's congressional supporters persistently proclaimed that they were not raising taxes. The court itself was forced to concede that "the statute reads more naturally as a command to buy insurance than as a tax."

In order to reach its conclusion that the mandate was a tax, and avoid the political fallout of striking down President Obama's signature achievement in an election year, the court did more than overlook the statutory text's natural meaning. It ignored congressional enactment of the mandate in a separate provision from any penalty. As Justices Scalia, Kennedy, Thomas and Alito wrote in dissent, "to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it." The perhaps unintended irony of this judicial edit is that politicians who wish to impose this type of mandate in the future will no longer be able to claim that they are not imposing a new tax.

The court's ObamaCare opinion presents an uncertain legacy. The court reaffirmed and clarified the constitutional limits on Congress's power to regulate commerce and to spend money. Yet the individual mandate and the law's Medicaid expansion were upheld through judicial copyediting that the court has always found to be beyond its own constitutional power. The fact that this happened in the context of a hotly contested statute raises questions about the court's ability to remain immune to political pressures.

Messrs. Rivkin and Casey are lawyers in the Washington, D.C., office of Baker & Hostetler LLP. They pioneered the constitutional arguments against the individual mandate and represented 26 states in challenging ObamaCare before the trial and appellate courts.

A version of this article appeared June 29, 2012, on page A13 in the U.S. edition of The Wall Street Journal, with the headline: The Court Rewrites ObamaCare.

By DAVID B. RIVKIN JR.

Editor's note: This op-ed was originally published on September 29, 1993.

The president has announced his health care plan, and congressional Republicans have announced theirs. Although the details are still murky, the plans seem to share one fundamental assumption -- that every man, woman and child in the U.S. must participate in the system. The healthy must subsidize the sick; the young must subsidize the old; the not so old must subsidize the very young. If this redistribution of wealth is to work without new taxes (and no one wants to admit that new taxes might be necessary), then everyone must be in the plan.

Where, exactly, does the U.S. government get the power to require that every one of its citizens must participate in a government-sponsored health care plan? Ask this of a health care reformer and he, or she, will sniff, think a moment, and (if legally trained) will immediately utter the two most magic words in late 20th century constitutional jurisprudence—Commerce Clause.

If the legality of a health care package featuring federally mandated universal participation is litigated (and we can bet it will be), and the system is upheld, it will mark the final extension of this originally modest grant of federal authority. Thereafter, Congress will be able to regulate you not because of who you are, what you do for a living, or whether you use the interstate highways, but merely because you exist.

This was not, of course, the original plan. One of the fundamental tenets underlying the Constitution of 1787 was that the federal government was a government of limited powers. Unlike the states, which had more general authority to regulate their citizens, the federal government was to be limited to those powers found within the four corners of the Constitution. In particular, Congress could exercise only that authority specifically granted to it by the people and the states.

There was a list -- and not a very long list. One of the powers enumerated on it was the "Power . . . To regulate Commerce with foreign Nations and among the several States." One of the most serious deficiencies of the first union under the Articles of Confederation was that states were able to erect barriers to trade with other states and foreign countries. The Commerce Clause was added to the Constitution so that Congress could create the original North American free trade zone -- within the U.S. itself.

The commerce power in the battered Constitution that emerged from the 1930s and 1940s, however, was very different. After being routed by President Roosevelt and his Congress, the Supreme Court fled to the Commerce Clause, finding there a way to avoid treading upon the vital interests of a Congress determined to regulate the economic relationships of the citizenry, not to mention its health, welfare and safety. In Wickard v. Filburn, in 1942, the court went so far as to rule that Congress could prevent a farmer from growing wheat for his own consumption. Too much of an effect on commerce, reasoned the court -- this fellow gobbling wheat he grew himself. After all, he could have purchased it interstate. On that day, the Framers' ghosts wept.

Of course, the commerce power was still, in theory, limited. In Wickard, after all, the man at least was a farmer, someone engaged in growing and selling foodstocks. Commerce was in the air, somewhere. And the court continued to pay at least lip service to the notion that the federal government is a government of limited authority, and that Congress can regulate only based upon some nexus to interstate commerce -- or in reference to one of its other enumerated powers, like the power to tax and spend. So long as Congress provides a reasonable explanation of that nexus, its actions will be upheld. The limits of the contemporary Commerce Clause are not very clear, but most would agree there are some limits.

The final test, however, has come. In the new health care system, individuals will not be forced to belong because of their occupation, employment, or business activities -- as in the case of Social Security. They will be dragooned into the system for no other reason than that they are people who are here. If the courts uphold Congress's authority to impose this system, they must once and for all draw the curtain on the Constitution of 1787 and admit that there is nothing that Congress cannot do under the Commerce Clause. The polite fiction that we live under a government of limited powers must be discarded -- Leviathan must be embraced.

The implications of this final extension of the commerce power are frightening. If Congress can regulate you because you are, then it can do anything to you not forbidden by the handful of restraints contained in the Bill of Rights. For example, if Congress thinks Americans are too fat -- many are -- and that this somehow will affect interstate commerce -- who's to say it doesn't? -- can it not decree that Americans shall lose weight? Indeed, under the new system, any activity that might increase the costs of health care might be regulatable.

If individuals can be regulated because of their health, then surely any activity with an impact on health also can be regulated. Perhaps one day it will be decided that every member of the new health care system -- everybody -- will be tested for the HIV virus. After all, your HIV status affects your health, the costs of health care, and, thus, interstate commerce. If a mandatory federal health system is justified under a Commerce Clause analysis, then any regulation of any health-related activity also can be justified.

Would the Bill of Rights intervene? Maybe, and maybe not. There is no specific right to eat when and how you like. There is no specific right not to undergo medical testing. The right against unreasonable searches and seizures? Perhaps. What about the "right to privacy"? It's been overused, but maybe. The Supreme Court might well look into its penumbra crystal and find the necessary limitations -- and maybe it won't.

One thing is clear. Once Congress's power is extended to every individual not because of his activities, but because he is, limits on its power will depend upon the fortitude and creativity of the courts. No American, whatever his policy views on health care reform, should rejoice at the disappearance of the last fragments of the principle that the federal government is one of limited powers. It is indeed ironic, and sad, that as the rest of the world is discovering the virtues of limiting their governments, the U.S. seems hellbent on unleashing its own.

Mr. Rivkin, an adjunct fellow at the American Enterprise Institute, served in the Reagan and Bush administrations. Lee A. Casey, also a former Reagan and Bush official, collaborated on this article.

Source: http://online.wsj.com/article/SB10001424052702303640804577490971369614332.html

"Congress has crossed a fundamental constitutional line."

As the nation awaits one of the most important Supreme Court decisions of our time, efforts to sway the decision toward upholding ObamaCare are not in short supply. Some have the thin veneer of news articles; others carry the weight of admonition by the President himself. One can only conclude that such efforts are based on a sober assessment that overturning at least one linchpin of the law is a very real possibility.

The editors of this newsletter recall vividly how the efforts of Messers Rivkin and Casey to call attention to the unconstitutionality of the 2010 healthcare law were met with derision by professors, legislators, and, unsurprisingly, reporters and news “analysts.” The hearty laughs and chuckles have long since ceased.

Lest readers believe that the legal argument against ObamaCare is grounded in political ideology, the editors of this newsletter present excerpts from articles penned by Rivkin or Casey to summarize the 26 states’ case against the federal government and to emphasize what’s at stake for the nation. —Editors

ObamaCare mandates that every American, with a few narrow exceptions, have a congressionally defined minimum level of health-insurance coverage. Noncompliance brings a substantial monetary penalty.

• The ultimate purpose of this "individual mandate" is to force young and healthy middle-class workers to subsidize those who need more coverage.
• Congress could have achieved this wealth transfer in perfectly constitutional ways. It could simply have imposed new taxes to pay for a national health system. But that would have come with a huge political price tag that neither Congress nor the president was prepared to pay.

Instead, Congress adopted the individual mandate, invoking its power to regulate interstate commerce. The uninsured, it reasoned, still use health services (for which some do not pay) and therefore have an impact on commerce, which Congress can regulate.

Congress's reliance on the Commerce Clause to support the individual mandate was politically expedient, but constitutionally deficient. Congress's power to regulate interstate commerce is broad but not limitless.

Congress has crossed a fundamental constitutional line. Neither the fact that every individual has some discernible impact on the economy, nor that virtually everyone will at some point in time use healthcare services, is a sufficient basis for federal regulation.

Nowhere in the Constitution can we find a provision to support the notion that “the ends justify the means.”

At stake are the Constitution's structural guarantees of individual liberty, which limit governmental power and ensure political accountability by dividing that power between federal and state authorities.

Upholding ObamaCare would destroy this dual-sovereignty system, the most distinctive feature of American constitutionalism.

The arguments advanced by ObamaCare's defenders are flawed because they admit no judicially enforceable limiting principle marking the outer bounds of federal authority.

Messrs. Rivkin and Casey are lawyers who served in the Justice Department during the Reagan and George H.W. Bush administrations. They represented the 26 states in their challenge to ObamaCare before the trial and appellate courts.

The contents of this article include excerpts from an article that appeared March 21, 2012, with the headline: The Supreme Court Weighs ObamaCare.

The critics should look no further than the U.S. to see what consequences can ensue.

By DAVID B. RIVKIN JR. And Karl r. moor

While the Israeli political scene is no stranger to strident criticisms directed at senior government officials and their policies, the recent attacks on Prime Minister Benjamin Netanyahu and Defense Minister Ehud Barak over their policies toward Iran are a dangerous luxury.

Numerous retired security officials who do not lack a private voice or influence within a small nation. including former Shin Bet head, Yuval Diskin, ex- Mossad chief, Meir Dagan, and Former IDF Chief of General Staff Gabi Ashkenazi, have launched broadsides against the current Israeli government’s dire assessments of the Iranian threat and the best ways of dealing with it.

They were followed by a more subdued critique, proffered by the IDF’s current Chief of General Staff Benny Gantz, who opined that the Iranian threat was not all that imminent and the Iranian regime, warts and all, was a rational strategic actor. These criticisms were reinforced by more openly political attacks, which came from Labor Chairwoman Shelly Yacimovich and Former Prime Minister Ehud Olmert.

Despite some differences in style and substance, the basic arguments of all these naysayers are that Messrs. Netanyahu and Barak have greatly exaggerated the extent of the threat posed by the Iranian nuclear weapons program, downplayed the efficacy of the global diplomatic and economic pressure on Tehran and overestimated the extent to which an Israeli military strike is a viable strategic option. While the precise modalities of these Israeli contretemps over the Iranian policy are unusual, they are not unprecedented.

Heated debates about issues of war and peace are endemic to all societies, and in democratic societies they are played out in the halls of government and in public. For example, during the George W. Bush Administration, senior CIA officials seemed to be at war with their political masters, leaking rosy assessments of the Iranian nuclear program in ways designed to foreclose any prospects of the U.S. launching a pre-emptive strike against Iran. Meanwhile, a few retired generals, dissatisfied with the Iraq war, attacked then-U.S. Secretary of Defense Donald Rumsfeld.

But these types of intramural disputes are never cost-free. The consequences of the attacks on Netanyahu’s and Barak’s handling of the Iranian issue are serious. That they make it more difficult for the current Israeli government to mount military strikes against Tehran’s nuclear installations is, of course, the most obvious result and the one clearly desired by the critics.

What the critics are missing is that other consequences ensue, too. Tehran is encouraged to press forward with its nuclear efforts. Pressure on Iran is likely to slacken off, since the international diplomatic pressure and sanctions against Tehran have been motivated as much - if not more - by the fear of an Israeli strike as by the concern for Iranian acquisition of nuclear weapons.

The impact is particularly pronounced in the case of North America, since U.S. President Barack Obama’s recent more robust sanctions policy is driven largely by a desperate desire to win his re-election bid; an endeavor that would be fatally compromised by the economic turmoil caused by an outbreak of any hostilities in the Middle East between now and November. All of this, of course, emboldens the mullahs even more.

These substantive problems aside, loyal Israeli dissenters are missing an even more important point. Israel is not an ordinary country. Its leaders and citizens alike maintain that Israel must meet the highest of ethical standards, even when dealing with existentialist threats that often entail moral dilemmas. It is also a beleaguered nation that has been living under siege throughout its entire existence.

For the first time in its history, Israel is dealing with a strategic threat that it may be unable to tackle entirely on its own. And, unlike the U.S., Israel has no margin for error and its statecraft has to punch above its weight. In this crucial moment in Israel’s existence, message discipline about the Iranian nuclear threat is in order. The unfolding public debate on Iran does not come close to meeting this standard.

David B. Rivkin, Jr. and Karl R. Moor are American lawyers who frequently write about national security and legal issues. Rivkin served in the White House and the Departments of Justice and Energy under Presidents Reagan and George H.W. Bush and is a senior advisor to the Foundation for the Defense of Democracies.

Source: http://www.haaretz.com/opinion/criticizing-netanyahu-barak-on-iran-is-a-luxury-israel-can-t-afford-1.430449