Professor Obama Holds Forth on the Mandate

Professor Obama Holds Forth on the Mandate
By David Catron on 8.23.11 @ 6:10AM

One reason the supporters of Obamacare were initially overconfident about its supposed invulnerability to legal challenges was their belief that the man who signed it into law was an expert on the Constitution. This misplaced faith was based on statements Obama himself made during his first presidential campaign. At a 2007 fundraiser, for example, he told his admirers, "I was a constitutional law professor, which means unlike the current president I actually respect the Constitution." This claim turned out, of course, to be one of Obama's trademark shadings of the truth. He was never a "professor" as genuine academics use the term. He was, however, a part-time faculty member at the University of Chicago, where he occasionally subjected hapless students to pontifications on the nation's founding document.

Nonetheless, some important passages of that document have apparently escaped "Professor" Obama's memory. On August 15, during his taxpayer-funded campaign bus tour, he made several assertions about the legal travails of his "signature domestic achievement" that suggest a less-than-perfect understanding of the Constitution. In Cannon Falls, Iowa, he comforted a visibly nervous supporter who was worried about the "conservative wing" of the Supreme Court striking down the individual mandate by saying, "If the Supreme Court follows existing precedent, existing law, it should be upheld without a problem." He then added, "There's nothing wrong with saying to people who can afford to get health insurance, you need to buy health insurance just like car insurance."

The latter assertion, that the individual mandate is analogous to laws requiring people to buy auto insurance, betrays a level of ignorance concerning the difference between state prerogatives and those of Congress that wouldn't be tolerated in a high school government class. It's a little unnerving coming from the President of the United States. The scholar-in-chief apparently doesn't remember that the reach of the federal government is limited to a specific set of enumerated powers and that any power not found on that short list is reserved to the states. This is why no one has filed a constitutional challenge to the insurance mandate that was imposed on the long-suffering citizenry of Massachusetts in 2006. The Romneycare mandate was wrong-headed, but it was enacted at the state level and thus does no violence to the Constitution.

The auto insurance meme fails on several other levels as well. First, although most states have such laws, they aren't universal mandates. Rather than forcing people to buy insurance simply because they exist, as the Obamacare mandate will do, state auto insurance mandates only affect people who buy and drive automobiles. If one's vehicle of choice is a bicycle, there is no requirement to buy coverage. In other words, a law requiring a driver to purchase auto insurance is based on a specific and voluntary action -- operating a large, dangerous machine in heavily used public spaces maintained at taxpayer expense. Obamacare's mandate, on the other hand, applies even to individuals who are doing nothing at all. It quite literally imposes a penalty on individuals who choose not to engage in a transaction.

As to Obama's claim that the mandate will be upheld if the Supreme Court "follows existing precedent," he might want to point out that particular precedent to his minions at the Department of Justice (DOJ). So far, the DOJ has been unequal to the task of finding a ruling in which the Court has affirmed the power of Congress to regulate inactivity via the Commerce Clause. That no such precedent exists was confirmed on August 12, by Judge Stanley Marcus, when the Eleventh Circuit Court of Appeals​ ruled the mandate unconstitutional: "[T]here is no Supreme Court decision squarely on point dictating the result that the individual mandate is within the commerce power of Congress…" This acknowledgment was particularly damning in that Judge Marcus is a supporter of the individual mandate.

In addition to failing in their quest for judicial precedents upholding the right of Congress to regulate private decisions not to engage in economic transactions, the luckless Justice Department lawyers assigned to this case haven't even been able to locate a case in which Congress has had the audacity to claim the unlimited power implied by the individual mandate. On this point the Eleventh Circuit majority, which included a judge appointed by Bill Clinton​, made itself abundantly clear: "The fact that Congress has never before exercised this supposed authority is telling… even if we focus on the modern era, when congressional power under the Commerce Clause has been at its height, Congress still has not asserted this authority." In other words, the mandate is utterly unprecedented.

And yet our constitutional scholar-in-chief assured his admirers in Iowa that the individual mandate is supported by "existing precedent" and is essentially no different than state requirements that drivers purchase car insurance. Cannon Falls, as it happens, was the same campaign stop at which the President also broke the news that he doesn't mind the term "Obamacare." Suddenly interrupting his own disquisition about the virtues of his health care "reform" law he announced, "By the way, you know what? Let me tell you, I have no problem with folks saying 'Obama cares.' I do care… I do care about families who have been struggling because of crushing health care costs." At which point, his minions trundled out a young man with a blood disorder whom Obama proceeded to use as a political prop.

Presumably, Obama does indeed care about some things. This would be more comforting if they included telling the truth about his background. It would be more reassuring still if he appeared to care about the nuances of the Constitution he has sworn to uphold. If he actually believes the things he said in Cannon Falls, he was an incompetent teacher and is a dangerous man to have in the White House. If he actually knows better but chose to lie, he has demonstrated once again that what he really "cares" about is reelection. Either way, the voters need to deny him tenure on November 6, 2012.