Independence Institute on Obamacare: It’s not about the Commerce Clause

The Independence Institute, a Denver-based free-market think tank that has led the charge in Colorado against the Affordable Care Act, has filed what it is calling two “potentially game changing” briefs with the U.S. Supreme Court. The court this week is hearing arguments on the constitutionality of the two-year-old law.

“These briefs are blockbusters,” said Institute President Jon Caldara, a radio and television personality who has been a firebrand speaker on the health-care law since long before it passed two years ago last week. “No one has gone after Obamacare this way before. This could literally spell the end of the [law].”

The briefs filed by Institute Research Director Dave Kopel are part of the wave of material related to the law that has swamped the high court in recent months.

In addition to deciding the fate of the Affordable Care Act, the case will influence presidential election-year politics and cast light on the ability of the legislative process as it stands in the United States to address issues vital to the American people.

Arguments around the law made in lower courts have centered on the Constitution’s Commerce Clause, which grants Congress the power to regulate business conducted across state lines. There is strong precedent supporting the legitimacy of the law from that standpoint and, in his main, first brief (pdf), Kopel seeks to shift the argument away from the Commerce Clause.

“What people… miss is that the Supreme Court itself tells us that issues like this– about purely intrastate activities such as buying health insurance– are really decided under the Necessary and Proper Clause,” Kopel said in a release, citing the clause that grants Congress the root authority to pass laws “necessary and proper” for exercising its other powers.

“There is new research just published by one of the top academic publishers in the world that shows the Necessary and Proper Clause was never meant to give the Congress the power to force you to buy something simply because the purchase would help ‘commerce’,” Kopel said. “The history of the Necessary and Proper Clause is very clear on that point. It’s just a matter of getting that history before the Court.”

Kopel’s second brief (pdf) concerns the expansion of Medicaid coverage guaranteed by the Affordable Care Act. Kopel said the law allows “federal bureaucrats, virtually at their uncontrolled whim, to bankrupt a state.”

He believes the law goes against a line of cases extending from as early as 1798, the latest being Alden v. Maine, was written in 1999 by Justice Anthony Kennedy, a likely key swing vote in the Affordable Care Act case.

The Supreme Court is considering several aspects of the law and whether or not the court at this point even has the authority to begin weighing the constitutionality of the so-called individual mandate, which will effectively require all Americans to buy insurance. The mandate goes into effect three years from now. The court is deciding that issue today.

Colorado Republican Attorney General John Suthers is in DC for the arguments. He joined the suit that was filed by 25 other state attorneys general opposing the individual mandate and that was accepted on appeal by the high court.

Should the case go forward today, a ruling isn’t expected until June.

The problems the Affordable Care Act seeks to address are well documented.

Prices for health care have skyrocketed in the last four decades in the United States. According to the Centers for Medicare and Medicaid Services and the Kaiser Family Foundation, health care costs shot from 7.2 percent of GDP in 1970 to 18 percent in 2010, and those costs are on track to hit 40 percent of GDP in 2050. Annual spending on health care in the U.S. hit $2.6 trillion in 2010. Although health care for Americans with high-end coverage is among the best in the world, the system fails tens of millions of Americans in ways that see illnesses accelerate and costs rise. Mainly, care is shifted to emergency rooms and crucial preventative checkups and treatments are de-emphasized. Nearly 50 million Americans under 65 have no health insurance, including 30 percent of 19- to 25-year-old Americans. There are 8 million uninsured children in the country. There are also 800,000 uninsured American seniors.

[ Image: US Supreme Court via Flikr by Katieharbath. ]

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John Tomasic

Writer, editor, teacher, web wrangler. He has worked for art, business, culture, politics publications, five universities and a UN war crimes commission. @johntomasic | 720-432-2128 |

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