The Looming Obamacare Decision and its Long Term Effect

In the coming week, the United States Supreme Court is almost certain to issue its decision on the constitutional challege to Obamacare. As a result, the media is filled with all sorts of analysis about the effect that such decision will have. As usual, the main topic that the various pundits are discussing is how, if at all, this will change the presidential race. Will it increase Democrat turnout? Will it decrease Democrat turnout? Will it cause Independents to turn from the president? Will it demoralize or energize the GOP? While these subjects may be of interest to the pundits, they are not the most important issues that need to be considered. By far, the main effect of the Obamacare decision will be its impact on the understanding of the limits placed by the Constitution on the federal government.

If the individual mandate is struck down as unconstitutional, it will be because Congress went beyond its powers under the commerce clause. That clause gives the federal government the power to "regulate" commerce among the states. For nearly two centuries, that limited power was kept in check by the Supreme Court which struck down attempts to go further than the limits allowed. Then, about seventy years ago, the Court changed the interpretation of the clause so that a farmer who grew a crop for his own family's consumption was considered to be involved in interstate commerce since he could have sold the crop on the market. From that point on, the commerce clause was no longer a limit. Oh, there were occasional instances where the limitation aspect of the clause surfaced, but there were anomalies. If the mandate is struck down, however, the clause will be back to acting as a true limit.

The idea that the commerce clause is again a limitation is earth shaking. Even more earth shaking is the possibility that the Roberts Court will go back to the actual Constitution and enforce it rather than continuing down the trail of innovative interpretation that the Court has used for decades to allow Washington to far outstep its powers.

Think of this example: the federal government is now heavily involved in education throughout the country. There is a Department of Education. There are federal laws like No Child Left Behind. There are programs like the Race to the Top which awards funds to states with innovative education programs. But, and this is key, there is no authority in the Constitution for the federal government to be involved in education. Education was a local subject which was left to the states and localities by the founders.

There is no question that education was to be a local matter. Indeed, it was strictly local with no federal involvement whatsoever. That was the case whether or not the government was run by Democrats or Republicans; education was local. In 1943, at a time when Franklin Roosevelt was president and the Congress was heavily Democrat, a booklet was published by the government commission to celebrate the 150th anniversary of the Constitution. It contained the following paragraph in a section about questions concerning the Constitution:

Q. Where, in the Constitution, is there mention of education?
A. There is none; education is a matter reserved for the states.

The Supreme Court has also made clear that education is not a federal issue. In San Antonio Independent School District v. Rodriguez (1973), the Court held that education "is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected." In other words, education is not covered by the Constitution; it is a state matter.

So here is the question: if the commerce clause can be used to strike down the individual mandate, can the assignment of education to local and state governments be used to strike down the Department of Education and the whole host of federal educational requirements? Last year, all the experts would undoubtedly have said "no" in response to this question. Of course, these were the same experts who told us that there was no question that the mandate is constitutional. Maybe, just maybe, the Supreme Court would rule against the federal educational establishment.

I do not know if anyone will use the decision on the mandate to challenge other places, like education, where the federal government oversteps the limits on its powers. Nor do I pretend to know what the Supreme Court would do if such challenges are brought. I am sure, however, that a ruling that the individual mandate is unconstitutional will open the doors wide to such challenges. It will open a road towards taking the Constitution back to its intended meaning. It will strengthen federalism and reduce the omnipotent federal government. It will certainly make things interesting.