Later today, The Heritage Foundation (with five other organizations and former Senator George LeMieux) will file an amicus brief in the Supreme Court in the Obamacare case that challenges the mandate requiring all individuals to purchase an inflated health insurance policy designed to subsidize other terrible policies in the 2,500-page bill.
Heritage previously published a detailed analysis on why the individual mandate is unconstitutional, and that paper is cited in our brief. But since the parties are making the central constitutional arguments, the joint amicus brief the Heritage is joining focuses on three other points that help create a framework for consideration of those constitutional issues.
First, our joint amicus brief points out that the presumption of constitutionality that the Court usually accords congressional legislation is based on the deference that is due to a coordinate branch’s independent judgment regarding constitutional questions. The brief argues that it would be wrong to defer to the independent judgment of Congress when none was exercised. Several Members of Congress argued that the bill, especially its individual mandate, was unconstitutional, and at least three Members cited the 18-page Heritage analysis of why it was unconstitutional. (Professor Randy Barnett, Nathaniel Stewart, and I co-authored that analysis.)
What was the response to those well-developed constitutional arguments? Not only did then-House Speaker Nancy Pelosi (D–CA) mock one reporter’s constitutional question with the “Are you serious” snap, she also said that Members would “have to pass the bill so that you can find out what is in it.” The principal sponsor in the other chamber, Senator Max Baucus (D–MT), also admitted that he wouldn’t “waste [his] time to read” the bill.
In sum, the sponsors didn’t even read the bill. Their defense of the bill’s constitutionality was nothing more than platitudes and empty claims that there were no limits to Congress’s authority, which every judge knows to be wrong. Remarkably, there were no hearings on the constitutional questions before passage and no serious analyses of constitutional authority in the committee reports. Given those facts, justices should extend no deference to a constitutional evaluation that was never rendered.
Second, the joint amicus brief points out all the procedural abuses (remember the budget reconciliation dodge and the various state kickbacks) that were necessary for the sponsors to squeak out a razor-thin, one-vote margin in each House. And that no-votes-to-spare majority was all from one party. The brief points out that the only bipartisan aspect of the bill was the opposition to it. In short, justices need not worry that they are overturning a broad consensus of the American people. The unexpected victory of Senator Scott Brown (R) in liberal Massachusetts, who won Ted Kennedy’s old seat on the promise he would stop Obamacare, is a better bellwether for what the American people really wanted at the time of passage.
Third, the brief shows that no other major landmark social legislation was passed without wide margins because the sponsors of all those other laws made compromises to address constitutional and other concerns. That is true for the Social Security Act, Medicare and Medicaid, the Civil Rights Act of 1964, the Voting Rights Act of 1965, the Americans with Disabilities Act, and the Welfare Reform Act in 1996. Most of those laws were passed with four-to-one or up to nine-to-one margins. None were even close, in large part because the sponsors took constitutional concerns seriously and spent months or years improving the legislation to address them.
Obamacare followed the exact opposite path: no compromise, no bipartisan support, razor-thin majorities, no attempt to fix constitutional defects, no time to read the bill, refusal to consider the mood of the country, no patience to consider constitutional arguments. It didn’t have to be that way.
So what should the High Court do with this mess? It should do its duty, enforce the Constitution, and strike down the law. And what is more, no justice should worry for a second about those in Congress who were not “serious” about their own duty. They have hoist themselves with their own petard.
Note: The brief will be filed on behalf of the Center for Constitutional Jurisprudence, the Judicial Education Project, Reason Foundation, The Individual Rights Foundation, The Heritage Foundation, Ending Spending, and Former Senator George LeMieux.