Examining the Origins of “Robertscare”

In the end, applesauce won over baseball. Fourteen years ago, during Senate hearings regarding his nomination as chief justice of the United States, John Roberts used a baseball metaphor to explain his view of judges’ modest role:

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire…I will remember that it’s my job to call balls and strikes, and not to pitch or bat.

On two major cases related to President Obama’s signature health care law, however, Roberts violated his 2005 pledge, wriggling himself into lexicographical contortions to uphold the measure passed by Congress. As his then-colleague Justice Antonin Scalia noted in the second ruling—which posited that the phrase “Exchange established by the state” applied to exchanges not established by states—upholding Obamacare caused Roberts to embrace “pure applesauce.”

Political Flip-Flop

She writes that he initially voted with the four other conservatives to strike down the ACA, on the grounds that it went beyond Congress’s power to regulate interstate commerce. Likewise, he initially voted to uphold the ACA’s expansion of Medicaid. But Roberts, who kept the opinion for himself to write, soon developed second thoughts.

Biskupic, who interviewed many of the justices for this book, including her subject, writes that Roberts said he felt ‘torn between his heart and his head.’ He harbored strong views on the limitations of congressional power, but hesitated to interject the Court into the ongoing health-insurance crisis. After trying unsuccessfully to find a middle way with Kennedy, who was ‘unusually firm’ and even ‘put off’ by the courtship, Roberts turned to the Court’s two moderate liberals, Stephen Breyer and Elena Kagan. The threesome negotiated a compromise decision that upheld the ACA’s individual mandate under Congress’s taxing power, while striking down the Medicaid expansion.

On the day of the ruling in June 2012, Chris Cillizza, then writing for The Washington Post, claimed that Roberts’ opinion “made good on his pledge to referee the game, not play it.” But the story Biskupic tells, which confirms prior reporting by Jan Crawford published shortly after the ruling, contradicts Cillizza’s view entirely. Roberts’ entire approach to the case consisted of playing games—and highly political ones at that.

The tenor of the passage reinforces how Roberts abandoned his stated principles in NFIB. Over and above talk of “the ongoing health insurance crisis” (perhaps a rhetorical flourish inserted by a liberal Atlantic writer) Roberts had no business feeling “torn between his heart and his head,” let alone stating as much to a reporter. Judges can feel both empathy and sympathy for parties in the courtroom and at the implications of their rulings. But facts remain facts, the law remains the law. Lady Justice remains blind for a reason.

An umpire—or a good umpire, at least—should make calls without fear or favor. If that means calling a third strike against the star slugger for the last out of the World Series, so be it. By his own admission, Roberts let factors outside the law determine his vote in the case. He abandoned his key test at a time when he should have followed it most closely.

Roberts’ Judicial Arrogance

I took that position not because I agree with Obamacare, but because Congress in 2017 decided to set the mandate penalty to zero while maintaining the rest of the law. Of course, Congress had taken no such action clarifying its intent on the law at the time of the ruling in NFIB v. Sebelius.

If the current lawsuit represents judicial activism, asking judges to take an action that Congress explicitly declined to embrace, then Roberts’ 2012 decision to uphold the individual mandate represents an act of judicial cowardice, running for cover and hiding rather than taking the decision that the law requires. For that reason alone, conservatives should refer to the law as “Robertscare”—for the justice who went out of his way to save it—rather than Obamacare. It shall stand as his epitaph.

This post was originally published at The Federalist.

What You Need to Know About Friday’s Court Ruling

Late Friday evening, a judge in Texas handed down his ruling in the latest Obamacare lawsuit. Here’s what you need to know about the ruling (if interested, you can read the opinion here), and what might happen next:

What Did the Judge Decide?

The opinion contained analyzed two different issues—the constitutionality of the individual mandate, and whether the rest of Obamacare could survive without the individual mandate (i.e., severability). In the first half of his opinion, Judge Reed O’Connor ruled the mandate unconstitutional.

Wait—Haven’t Courts Ruled on the Individual Mandate Before?

Yes—and no. In 2012, the Supreme Court ruled the individual mandate constitutional. In his majority opinion for the Court, Chief Justice John Roberts (in)famously concluded that, even though Obamacare’s authors proclaimed the mandate was not a tax—and said as much in the law—the mandate had the characteristics of a tax. Even though Roberts concluded that the mandate exceeded Congress’ constitutional authority under the Commerce Clause, he upheld it as a constitutional exercise of Congress’ power to tax.

However, in the tax bill last year Congress set the mandate penalty to zero, beginning on January 1, 2019. The plaintiffs argued that, because the mandate will no longer bring in revenue for the federal government, it no longer qualifies as a tax. Because the mandate will not function as a tax, and violates Congress’ authority under the Commerce Clause, the plaintiffs argued that the court should declare the mandate unconstitutional. In his opinion, Judge O’Connor agreed with this logic, and struck down the mandate.

What Impact Would Striking Down the Mandate Have?

Not much, seeing as how the penalty falls to zero in two weeks’ time. Striking the mandate from the statute books officially, as opposed to merely setting the penalty at zero, would only affect those individuals who feel an obligation to follow the law, even without a penalty for violating that law. In setting their premiums for 2019, most insurers have already assumed the mandate goes away.

Then Why Is This Ruling Front Page News?

If the court case hinged solely on whether or not the (already-defanged) mandate should get stricken entirely, few would care—indeed, the plaintiffs may not have brought it in the first place. Instead, the main question in this case focuses on severability—the question of whether, and how much, of the law can be severed from the mandate, if the mandate is declared unconstitutional.

What Happened on Severability?

Judge O’Connor quoted heavily from opinions in the prior 2012 Supreme Court case, particularly the joint dissent by Justices Anthony Kennedy, Samuel Alito, Antonin Scalia, and Clarence Thomas. He ruled that the justices viewed the mandate as an “essential” part of Obamacare, that the main pillars of the law were inseparable from the mandate.

The judge also noted that some of the lesser elements of Obamacare (e.g., calorie counts on restaurant menus, etc.) hitched a ride on a “moving target,” that he could not—and should not—attempt to determine which would have passed on their own. Therefore, he ruled that the entire law must be stricken.

Haven’t Things Changed Since the 2012 Ruling?

Last year, Congress famously couldn’t agree on how to “repeal-and-replace” Obamacare—but then voted to set the mandate penalty to zero. A bipartisan group of legal scholars argued in this case that, because Congress eliminated the mandate penalty but left the rest of the law intact, courts should defer to Congress’ more recent judgment. Judge O’Connor disagreed.

What Happens Now?

Good question. Judge O’Connor did NOT issue an injunction with his ruling, so the law remains in effect. The White House released a statement saying as much—that it would continue to enforce the law as written pending likely appeals.

On the appeal front, a group of Democratic state attorneys general who intervened in the suit will likely request a hearing from the Fifth Circuit Court of Appeals in New Orleans. From there the Supreme Court could decide to rule on the case.

Will Appellate Courts Agree with This Ruling and Strike Down Obamacare?

As the saying goes, past performance is no predictor of future results. However, it is worth noting two important facts:

1.      The five justice majority that upheld most of the law—John Roberts, Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotamayor—all remain on the Supreme Court.
2.      As noted above, Chief Justice Roberts went through what many conservatives attacked as a bout of legal sophistry—calling the mandate a tax, even though Congress expressly said it wasn’t—to uphold the law, more than a year before its main provisions took effect.

What About Pre-Existing Conditions?

On Friday evening, President Trump asked for Congress to pass a measure that “protects pre-existing conditions.”

I have outlined other alternatives to Obamacare’s treatment of pre-existing conditions. However, as I have explained at length over the past 18 months, if Republicans want to retain—or in this case reinstate—Obamacare’s treatment of pre-existing conditions, then they are failing in their promise to repeal the law.

Liberals’ Ridiculous Health Care Charges Against Brett Kavanaugh

So much for subtle. On Tuesday, Senate Minority Leader Chuck Schumer (D-NY) placed health care at the top of the list of reasons to oppose Brett Kavanaugh’s nomination to the Supreme Court, throwing in some over-the-top rhetoric in the process:

We Democrats believe the No. 1 issue in America is health care and the ability for people to get good health care at prices they can afford. The nomination of Mr. Kavanaugh would put a dagger through the heart of that cherished belief that most Americans have.

Put aside for a moment that Obamacare itself has “put a dagger through the heart” of people’s ability “to get good health care at prices they can afford” by more than doubling individual insurance premiums during President Obama’s second term. The idea that a pending lawsuit would allow the Supreme Court to strike down Obamacare, and that a Justice Kavanaugh would cast the deciding vote to do so, ranges from implausible to ridiculous, for at least three reasons.

Second, as I previously noted, Kavanaugh wrote an opinion in 2011 that, while deferring a definitive judgment on the merits, suggested an inclination to uphold Obamacare’s mandate as constitutional. In one footnote of his opinion, Kavanaugh noted that “the fact that an exaction is not labeled a tax does not vitiate Congress’s [sic] power under the Taxing Clause.” To Kavanaugh, it mattered not that Congress said the mandate was not a tax to justify it as such under the Constitution—the same logic that troubled conservatives about Roberts’ ruling in the mandate case.

Kavanaugh did seem troubled by the fact that Obamacare contains both a statutory requirement to buy coverage and a penalty (“tax”) for those who fail to do so. But another footnote suggested a way out:

At oral argument, counsel for the Government argued that a citizen who refused to obtain health insurance would still be acting lawfully. If that were true, the mandate would presumably pass muster under the Taxing Clause. But it is not evident that the statutory language is fairly susceptible to such an interpretation. That said, perhaps the canon of constitutional avoidance would allow such an interpretation of this provision and thereby squeeze it within the Taxing Clause.

Roberts did exactly what Kavanaugh suggested, eliminating the “perhaps” from Kavanaugh’s last sentence, and defending the mandate as permissible under Congress’ Taxing Clause power.

Wall Street firms often note that past performance does not equate to future results, a motto worth noting here. But it seems highly unlikely that a judge willing to justify what Congress itself termed a “penalty” as a tax, and who cited the “canon of constitutional avoidance” as a way to uphold Obamacare, would suddenly vote to strike down the entire law—after Congress just last year declined to do so. (In fact, the Supreme Court may not even vote to hear the case at all.) All this makes Schumer’s talk of “dagger[s] through the heart” so much noise.

Schumer’s Strategy Could Be Improved

One could make a compelling argument that, if Schumer really wanted to defeat the Kavanaugh nomination, he would take the opposite tack, and “hug him close” on Obamacare. An exercise in trolling conservatives could cause them some serious discomfort: “We know Judge Kavanaugh would uphold Obamacare at the Supreme Court, because he laid the roadmap for saving Obamacare there six years ago.”

But Schumer has instead tried to play the health care card against Kavanaugh, for any number of potential reasons.

  • He worries about over-emphasizing abortion rights during the confirmation process, which could cause political heartburn for several Senate Democrats running for re-election this year in states Donald Trump won in 2016;
  • He wants to preview themes Democrats will push in the election campaign this fall;
  • He doesn’t want to anger Democrats’ base by conceding the health care issue, as they want him to fight Kavanaugh’s nomination and support Obamacare, even if doing so could improve the chances of defeating the nomination; and/or
  • He thinks it unlikely he can defeat Kavanaugh, and wants to keep his caucus united rather than make a long-shot tactical gamble that could divide Democrats.

This post was originally published at The Federalist.

Obamacare Challenges: Where the Conventional Wisdom Falls Short

Since the U.S. Court of Appeals for the D.C. Circuit struck down an Internal Revenue Service regulation implementing Obamacare, some observers have predicted that the IRS rule would ultimately be upheld. The regulation extends federal subsidies to individuals purchasing insurance from federal exchanges and not just state-run exchanges, as the Affordable Care Act specifies. But when it comes to legal challenges regarding the health-care law, the conventional wisdom has sometimes been wrong.

Consider, for instance, the Supreme Court’s decision upholding Obamacare two years ago. The day that the court ruled in June 2012, President Barack Obama said: “Earlier today, the Supreme Court upheld the constitutionality of the Affordable Care Act.

Actually, the court was more nuanced. On Page 58 of the ruling in National Federation of Independent Business v. Sebelius, the justices wrote: “The Affordable Care Act is constitutional in part and unconstitutional in part.” While the court upheld the individual mandate as a permissible exercise of the taxation power, it struck down provisions of the ACA’s expansion of Medicaid as unconstitutional “economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion.”

Two years later, a digital campaign on the White House Web site argues for states to expand Medicaid under the ACA–and warns of dire consequences for those that do not. But the administration embarked on the campaign because the Supreme Court made Medicaid expansion optional for states.

It’s also worth noting that seven of the nine Supreme Court justices agreed that it was unconstitutional to mandate Medicaid’s expansion. Those seven justices included Stephen Breyer, previously a staffer for Sen. Edward Kennedy, and Elena Kagan, a former solicitor general in the Obama administration. So those predicting that some judges and justices would preserve the IRS rule based solely on which president appointed them to the bench may yet be disappointed.

Legal decisions don’t always break down along party lines or meet political talking points. That’s something to bear in mind as the cases wind through the courts.

This post was originally published at the Wall Street Journal Think Tank blog.

Obamacare Mandate Taxing the Administration’s Powers of Spin

In today’s latest installment of absurd political parsing, the Obama campaign said today that Obamacare’s mandate is not a tax, and is instead a “penalty,” despite what the Supreme Court ruled last week.  The campaign claimed “the Administration ‘never referred to it as a tax’ in court.”

Actually, that’s not exactly true either.  The Solicitor General claimed it WAS a tax increase – because Senator Baucus said it was a tax increase, and Congress upheld it on those grounds.  From page 49 of the transcript of March 27’s oral arguments:

JUSTICE KAGAN:  I suppose, though, General, one question is whether the determined efforts of Congress not to refer to this as a tax make a difference….And that seems right, except that here we have a case in which Congress determinedly said, this is not a tax, and the question is why should that be irrelevant?

GENERAL VERRILLI:  I don’t think that that’s a fair characterization of the actions of Congress here, Justice Kagan.  On the — December 23rd, a point of constitutional order was called, too, in fact, with respect to this law.  The floor sponsor, Senator Baucus, defended it as an exercise of the taxing power.  In his response to the point of order, the Senate voted 60 to 39 on that proposition.

Ironically enough, even though the Solicitor General argued that Congress imposed the mandate as a tax increase – purportedly at odds with the President’s (current) position – at no point did the President attempt to contest that legislative history.  President Obama could have vetoed the entire law because Congress said the mandate was a tax increase.  He also could have issued a presidential signing statement clarifying that the mandate was not a tax increase.  He did no such thing.

Recall the case of Obama v. Stephanopoulos, whereby the President claimed that “the fact that you’ve looked up Merriam’s [sic] Dictionary, the definition of tax increase, indicates to me that you’re stretching a bit.”  That’s not “stretching” nearly as far as the Solicitor General’s claim that the mandate is a tax because Congress said it’s a tax – and the President, while disagreeing with that interpretation, signed the law based on that premise and never took an official act to register said disagreement.

At this rate, the next thing the Administration will do is claim the law isn’t a tax increase because you’re not paying the tax increase right this second.  Don’t think a Democrat President could make such a ridiculous claim?  Think again.

Unfortunately, Chief Justice Roberts didn’t condition his ruling upholding the mandate under the taxing power on President Obama first admitting publicly that the mandate is in fact a tax increase. (One only wonders how the President might have responded under those circumstances.)  But there really are only two options here:  The mandate is either unconstitutional, or it’s a multi-billion dollar tax increase.  Pick one.

Is She “Serious?” Pelosi Says Obamacare Is “Market-Oriented”

Reactions to yesterday’s Supreme Court ruling keep pouring in, and some of them have been, well, interesting.  In an interview with ABC News, Nancy Pelosi called Obamacare “a market-oriented, private sector-oriented piece of legislation.”

The former Speaker famously asked “Are you serious?” when it came to Obamacare’s constitutionality. (Which is ironic, because even Elena Kagan and Stephen Breyer ruled part of the law unconstitutional yesterday.)  But our only response to Pelosi’s claim that Obamacare is market-oriented has to channel “Airplane!” “Surely you can’t be serious!

Here are just ten reasons why Obamacare is a massive intrusion of government into the private lives and health care decisions of all Americans:

  1. Taxes American Businesses that do not provide Government Approved Health Plans.  Beginning in 2014, businesses with more than 50 employees will be taxed $2,000 per employee if they do not provide government-approved health insurance for their employees.
  2. Forces More Americans into Medicaid – A Broken, Bankrupt Government Entitlement Program.  The current Medicaid program is already bankrupting states and the federal government, yet the new law forces 25.9 million more people into this broken program.  Medicaid patients are already denied access to about 40 percent of physicians because reimbursements are so low.  Half those newly “insured” under the health care law will get their coverage through this government program – Medicaid.
  3. Puts The Federal Government In Charge of Your Health InsuranceThe law created new rules and regulations for all health insurance in America.  The government will decide what type of health care you must to purchase, what your plan must to cover and how much it costs.   Even if you want to purchase a lower cost plan, you can’t.
  4. By one count, the law creates 159 new boards, offices, and panels in the Federal Government to make decisions about your health care.  The Congressional Research Service determined that trying to count the endless number of new bureaucratic entities was “impossible” and an official count was “unknowable.”
  5. Gives the Obama Administration Secretary of Health and Human Services More Than 1,700 New or Expanded Powers – to Exert Control Over the Lives and Personal Health Care Decisions of Americans.
  6. Levies more than $550 billion dollars of taxes, fees, and penalties related to health care on American families and employers.
  7. Spends Tens of Billions of Taxpayer Dollars Just to Implement the Massive New Law. In their cost estimate of the law, the Congressional Budget Office said it could cost as much as $20 billion for the Internal Revenue Service and the Department of Health and Human Services just to implement the law.
  8. Creates a New Panel of Government Bureaucrats to Cut Medicare. The Democrats’ law created a panel of politically-appointed bureaucrats who have the power to effectively to write laws regarding Medicare.  Under the law, unelected and unaccountable bureaucrats will make personal Medicare decisions that automatically take effect unless Congress intervenes.
  9. Micromanages how patients can spend their own tax-free health care dollars.  Under the law, the government imposes onerous new requirements on tax-free savings accounts that will limit their use and create costly barriers to qualified products by prohibiting the purchase of over the counter medical products unless prescribed by a doctor.  Items such as pain relievers, cough medicine, and allergy medicine will now require a costly visit to the physician if an individual would like to purchase that item with the funds from their account.
  10. The law’s 2,700 pages was just the beginning, as Washington bureaucrats have written more than 12,000 pages – and counting – of additional regulations to restrict personal freedom and micromanage the private market.   These massive new mandates being rolled out every day by Washington are increasing uncertainty, and making it difficult for small firms to expand and grow their businesses.




Former Speaker Pelosi – she of “we have to pass the bill to find out what’s in it” fame – may still have not read the 2700-page law, and therefore remains unaware of the government overreach included in it.  But the American people know about all the mandates, regulations, and bureaucracy in the law, which is why the only thing bipartisan about Obamacare has been the opposition to it.

Obamacare’s Future Still Shaky

Judging from much of the media coverage of the Supreme Court’s ruling over the past 24 hours, one would think the law had been given a clean bill of constitutionality by the Court, meaning Obamacare faces smooth sailing from here on in.  But as ESPN’s Lee Corso might say, “Not so fast, my friend!

First, as we pointed out yesterday, part of Obamacare WAS ruled unconstitutional by the Court – and by a 7-2 margin, no less.  That bears worth repeating: Even Justices Elena Kagan – one of President Obama’s appointees, and his former Solicitor General – and Steven Breyer – a former Ted Kennedy staffer – thought Obamacare’s Medicaid expansion was unconstitutionally coercive.  So much for “Are you serious?”

Second, Obamacare faces continued obstacles on numerous fronts, including in the courts:

  1. (More) Constitutional Uncertainty:  Other Obamacare provisions are subject to constitutional litigation.  For instance, the law’s Independent Payment Advisory Board – that bureaucratic spawn so dangerous President Obama is afraid to appoint nominees to it during his re-election campaign – has been challenged as giving unelected and unaccountable officials carte blanche to re-write Medicare policy, thereby usurping the role of Congress.  Former Obama Administration budget chief Peter Orszag thinks IPAB is one of the lynchpins of the law, precisely because it is constitutionally questionable – or, as he put it, “less democratic.”
  2. Legal Uncertainty:  Challenges to other elements of the law – such as its infringements on religious liberty – that had been delayed during the Supreme Court’s consideration will now proceed apace.  Also likely subject to a legal challenge is the Administration’s regulatory ruling indicating that individuals in a federal exchange can receive insurance subsidies – which appears to violate the plain text of the statute.
  3. Funding Uncertainty:  While some implementation funding was included in the law, most of that money has been spent – meaning the Administration has to come back to Congress for more money through the annual appropriations process.   Amidst all the reaction to the Court ruling yesterday, many may have missed the fact that the White House issued a veto threat against an appropriations measure being considered in the House, in part because the appropriations bill restricts funding to the IRS for implementation of Obamacare – including implementation of the health insurance mandate tax.  As a reminder, Obamacare does NOT give HHS mandatory funding to establish a federally-based exchange, which is why the Administration requested more than half a billion dollars in new discretionary funding for a federal exchange in its budget this February.  Given that the federal government is running trillion-dollar deficits, why does anyone think Congress should be favorably inclined to spend billions more implementing a law the Supreme Court has admitted is a constitutional overreach?
  4. State Uncertainty:  Yesterday’s ruling gave states the ability to opt out of the law’s new Medicaid expansion – which according to the Medicare actuary accounts for more than half of the law’s coverage expansions – without giving up their existing Medicaid funding.  States can also decide not to create state-based exchanges, and many have declined to create them.  Even Tom Daschle, President Obama’s once-putative HHS Secretary, admitted that the law is so cumbersome and unwieldy that states are unlikely to be ready for its “Big Bang” in January 2014.  And yesterday’s ruling should not give states any more incentive to implement an unconstitutional law – it may well give them less incentive to do so.
  5. Electoral Uncertainty:  This topic should be self-evident.  However, it does give me the opportunity to point out the conservative justices’ observation in their dissent that “cutting Medicare is unpopular” (page 59).  Which is a delicate way of pointing out that senior citizens may not like the idea that Obamacare uses more than $500 billion in Medicare savings not to improve Medicare’s financial stability, but to create a new entitlement.  And as President Obama likes to say, “Elections have consequences.”
  6. Overall Uncertainty:  Even as the Administration attempts to claim victory and certainty on implementation, the true picture is far from clear:
    • States could opt out of the Medicaid expansion;
    • More states could choose not to create Exchanges;
    • The federal government could lack the resources necessary to create a federal Exchange;
    • Courts could overrule federal bureaucrats’ arbitrary decision, and decide that Obamacare does NOT authorize insurance subsidies to those enrolled in a federal Exchange – thus undermining both the subsidy regime and the employer mandate.

The most important point is this: The American people don’t want this unconstitutional law – and they never have.  To argue that implementation will proceed full-speed ahead – in the face of public opinion, the significant obstacles ahead, and a Supreme Court ruling calling parts of the law unconstitutionally coercive – may strike some as whistling past the graveyard.

Mandates and Slippery Slopes

You will by now be aware that the Supreme Court today granted cert to hear arguments on Obamacare – two hours of arguments on the individual mandate, 90 minutes on severability, and one hour each on the Medicaid expansion and Anti-Injunction Act issues.  But when it comes to the individual mandate, a New York Times article this morning talked about its wide-ranging implications on the limits (or lack thereof) of federal power: “If the federal government can require people to purchase health insurance, what else can it force them to do?  More to the point, what can’t the government compel citizens to do?  Those questions have been the toughest ones for the Obama administration’s lawyers to answer in court appearances around the country over the past six months.  And they are likely to emerge again” at the Supreme Court.

Recent months have given just some examples of the requirements Congress, if granted the authority to impose mandates on all Americans due to their very existence:

The CLASS Mandate:  The former Obama Administration budget director first referenced the idea of mandatory participation in CLASS over the summer; other liberal bloggers have agreed.  The Justice Department likewise conceded in a Pennsylvania courtroom that mandatory long-term care insurance would be constitutional.  And seeing as how HHS admitted the program could not be made solvent without a mandate, who does not believe an Obama Administration, emboldened by a Supreme Court ruling upholding the health insurance mandate, would not attempt to require all Americans to participate in this program?

The Home Mandate:  During the 2008 campaign, candidate Obama derided the idea of an individual mandate to purchase health insurance: “If a mandate was the solution, we could try that to solve homelessness by mandating everyone buy a house.”  Of course, he later changed positions on the health insurance mandate – and if the housing market remains stagnant in the future, he could change positions to endorse home-buying solutions as well.

The Broccoli Mandate:  In an exchange with Sen. Coburn during her confirmation hearings, now-Justice Elena Kagan pointedly – and repeatedly – declined to say that passing a law requiring individuals to eat three fruits and three vegetables a day would be unconstitutional.  Such a mandate could be imposed on the grounds that it would slow the growth of health costs, thereby saving the federal government money.

Given last week’s controversy over the “Christmas tree tax,” some observed that if the government wanted to promote the Christmas tree industry, it need not impose a tax on conifers to fund a Christmas Tree Promotion Board – it could just force everyone to buy Christmas trees instead.

It is these types of questions, integral to the relationship between individuals and the federal government, which surround the Obamacare case the Supreme Court will consider next year.

First Referendum on PPACA: Voters 1, Health Care Law 0

This morning’s big news comes from the “Show Me State,” where Missouri voters overwhelmingly approved a ballot measure designed to block the introduction of an individual mandate to purchase health insurance.  Upwards of 70 percent of voters approved the measure, which passed by a margin of more than 2 to 1. (While supporters of the health care law, and thus opponents of the referendum, will claim that turnout in yesterday’s primaries was low and therefore skewed, it’s worth pointing out that the referendum occurred in August and not November largely because Democrats in the state Senate insisted on holding the vote now.)

A sampling of quotes from this morning’s articles on the Missouri ballot effort:

Activist Annette Read, who organized the ballot effort, in an AP story: “To us, it symbolized everything…The entire frustration in the country … how our government has misspent, how they haven’t listened to the people, this measure in general encompassed all of that.”

Contractor Mike Sampson, also quoted by AP:  “I believe that the general public has been duped about the benefits of the health care proposal.”

C.C. Swarens, executive vice president of the Missouri State Medical Assn. backing the referendum, in an LA Times story:  “There is just a backlash against everything Washington right now.”

Republican state Senator Jane Cunningham, in a New York Times story:  “My constituents told me they felt like their voices had been ignored and they wanted Washington to hear them…It looks to me like they just picked up a megaphone.”

Republican state Senator Jim Lembke, also quoted in the New York Times:  “This really wasn’t an effort to poke the president in the eye…First and foremost, this was about defining the role of state government and the role of federal government.”

Again, the overwhelming approval for the Missouri referendum comes at a time when the Senate is considering the nomination of Elena Kagan to the Supreme Court.  Ms. Kagan has not only said that Congress should be granted due deference when it comes to defining interstate commerce; she has gone so far as to suggest that passing a law requiring individuals to eat three fruits and three vegetables a day could be constitutional.

More on Virginia Health Care Lawsuit

The Wall Street Journal’s editorial this morning does a good job of summing up the significance of yesterday’s ruling denying the motion to dismiss in the Virginia health care lawsuit. (Politico has a news story on the ruling here.)  While the White House released a blog posting suggesting that the lawsuit was frivolous – judges should “ensure that our courts do not become forums for political debates” – Judge Hudson rightly noted that this case is novel in its sweeping scope, as the federal government has never penalized people for NOT buying a product. (Also worth noting: The White House’s blog posting did not attempt to defend the mandate’s constitutionality through the federal taxing power – indicating that the Administration is still attempting to “have it both ways” when it comes to saying that the individual mandate to purchase insurance is a tax.)

It’s also worth noting that the morning after the judge in Virginia rejected an attempt to dismiss the first challenge to the health care law’s constitutionality, the Senate will begin debating the Supreme Court nomination of Elena Kagan, who in an exchange with Sen. Coburn during her confirmation hearings pointedly (and repeatedly) declined to say that passing a law requiring individuals to eat three fruits and three vegetables a day would be unconstitutional.  As Judge Hudson noted yesterday, the health care law “literally forges new ground and extends Commerce Clause powers beyond its current high watermark” – a major constitutional development with which Ms. Kagan, during her confirmation hearings, expressed no qualms.