by Gary Galles
On December 14, U.S. District Judge Reed O’Connor ruled Obamacare unconstitutional because its individual mandate requiring people to have health insurance “can no longer be sustained as an exercise of Congress’s tax power,” since the tax that enforced it is now gone. Progressive leaning critics quickly called it bad jurisprudence and assured people that Obamacare remained constitutional.
However, Judge O’Connor’s ruling just saw through the hocus pocus by which Obamacare was first found constitutional. Remember how the penalties for not having insurance under the ACA plan arose? It was repeatedly and emphatically asserted to not be a tax, but a regulation (so that its costs would not be counted in ACA’s fiscal scoring). But Chief Justice Roberts’ 5-4 majority decision found the ACA constitutional only because it really was a tax, which Congress has the power to impose, when a regulation mandating that Americans purchase health insurance would have been unconstitutional.
Beyond that convenient but mutually inconsistent weasel-wording, two months ago, Democrats showed no concern about violating the Constitution when it suited their policy agenda. President Trump issued an executive order stopping ACA subsidy payments to 6 million people. 18 states quickly sued to reverse the order as illegal. But the attackers’ case hinged on ignoring the Constitution.
Every federal program requires two steps before spending money. Congress must both authorize it and appropriate the money for it. And the necessity of the second step could not be clearer: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” However, spending for the ACA subsidy payments was never congressionally authorized.
Instead, President Obama simply ignored the Constitution. He instructed Health and Human Services and the Treasury to divert money appropriated for other programs, but left which programs to be cut unspecified. Why? If a specified program was raided, Congress and program beneficiaries would have clear constitutional cause to stop it. So even though every possible diversion would be unconstitutional, Obama’s failure to specify where funds would come from, delegating the dirty work to cabinet members, supposedly transmuted the unavoidable unconstitutionality into legitimacy, protecting Obamacare from constitutional scrutiny long enough to make it a political fait accompli. The strategy was that the subsidies would be politically impossible to undo, even if the Court later ruled against them, because taking away what millions of people had already been given, however unconstitutionally, would intimidate opponents in Congress into authorizing that money to backfill and continue the subsidies.
Left-leaning supporters of that constitutional subterfuge joined that bandwagon. Law professor Nicolas Bagley advocated that we just ignore the Constitutional violation, because Trump’s “constitutional rhetoric is pure pretext” to sabotage the ACA. That is, we should just accept Obama’s unconstitutional gambit because Trump’s position was supposedly disingenuous. But that shows how not to interpret Constitutional law — i.e., “my opponent doesn’t really mean what he says, so my interpretation, however inconsistent with the Constitution, should be upheld” — far more than how to interpret it.
While those on the left claim the Constitution for their assertions against Judge O’Connor’s ruling, their allegiance would be far more convincing if they didn’t turn themselves inside out to evade a clear constitutional mandate when it suited them, just two months earlier. And winning in newspapers’ editorial headlines today is not the same as constitutional justification.
The left’s skewed and inconsistent claims bring all such arguments into question, as their partisans always reverse-engineer arguments that would make their wishes constitutional, even when they clearly are not. And when claims of constitutional allegiance are just convenient cover for desired policies, rather than requiring adherence even when many who rule us find it inconvenient, we need to remember that the point of the Constitution was to make them our servants, not the other way around. And that means that the Constitution is not what they say it is, just because they say so.
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Gary M. Galles is a professor of economics at Pepperdine University. He is the author of The Apostle of Peace: The Radical Mind of Leonard Read.