(from The Wall Street Journal, August 15, 2011)
Opinion Journal: “Obama v. the Constitution”
Host: My next guest here is David Rivkin. David is joining us to talk about the 11th Circuit’s decision last week overturning the individual mandate in the Obama healthcare law . . . I should point out that David and his colleague Lee Casey argued this case at a lower court level . . . so what is the significance of this decision?
David Rivkin: Well, it’s the first time the Court of Appeals has done it, point number one. Point number two, you have a bipartisan panel, I hate to engage in these types of observations, but it’s very important that you had a Republican judge and a Democrat nominee, if you will, come together. But most importantly to me, it is a meticulously crafted opinion. It’s long, 207 pages, and it debunks every single argument the government has made. And it has done it in a very measured, low-key fashion.
In my opinion, it sets it up perfectly for the Supreme Court review, and it will be the most influential Circuit Court opinion to set the stage, if you will, for the next phase.
Host: What is the key reason they gave for finding this individual mandate unconstitutional?
Rivkin: Interesting, because we’re ending up at this phase exactly where we started from the beginning. The argument is very simple. There is no meaningful, judicially enforceable limiting principle that attaches to this exercise of Congressional power.
If government can require you to spend your money, and the court emphasizes by the way, spending your money to purchase a product from another private party.
If the government can do that, the totality of your disposable income after taxes can be commanded by the government. That is a classical exercise of police power. Not a very good exercise policy-wise, but in terms of its legal pedigree, it’s what you call general police power; impacting people because they exist.
In our constitutional system, police power is vested in the states. Federal government is a government of limited, enumerated powers. And the court basically says, quite correctly, that if the government can do this here, it can do a variety of other mandates. State sovereignty is gone. But most importantly, individual liberty suffers.
Host: There was a line in the decision that jumped out at me, it’s really quite graphic, they said that never before in the history of the country, not in World War II, not during the Cold War, not during the depths of any recession, has the government ever decided that it is required to force people to take an action like this. Why now? Why does the Obama administration feel that it is possible to get this through the courts right now?
Rivkin: Dan, that’s an excellent point. By the way, its not just a rhetorical point, because there’s Supreme Court precedent that stands for the proposition that 200 plus years in a Republic, if a government has not used a particular power in a particular way, that is very significant. It doesn’t finish analysis, but it is very significant.
Their point is, by the way, not only was it never used, people were not forced to buy bonds, people were not forced to buy fuel-efficient cars. But the entirety of our exercise of governmental power in the commerce clause area is always necessarily incomplete and is always rooted in some activity, in some product.
My favorite example: They say look at the flood insurance policy, which is a flop. Most Americans don’t buy it. Why? It’s not mandated that they buy it. Instead the way the statute works, with regard to flood insurance, if you’re going to get a loan from a federally chartered bank, a federally insured bank . . . So all the previous exercise of governmental power is inherently spotty, because they’re pivoting off some activity, some product, some channel of commerce.
Host: But this is not just any activity. The administration’s lawyers, and many liberal academics, argue that healthcare is inherently different. They are going to argue before the Supreme Court when the case gets there, that health care is a special case.
Rivkin: And I believe it will fail. And the court does a marvelous job in looking at the government’s so-called ‘five factors’ . . . First of all, it’s not true. You can make the same observations: Inevitability of consumption. Are you and I not inevitably consuming food and some hydration? Housing. But more important, there’s no constitutional significance.
These have to be meaningful, judicially enforceable factors.
It’s a very important point: What liberals are really saying here, the difference in a good mandate and a bad mandate is to be done more or less by the political branches.
In effect it takes the judiciary out of the loop. And that is fundamentally inconsistent with our constitutional architecture.
Host: Well, people think of the judiciary as protecting individual liberty. What is the role of individual liberty at the center of this case and in terms of their argument?
Rivkin: Individual liberty, and the court makes it very clear, is at the heart of this case. The best way, the primary way of protecting individual liberty in our system is through diffusion of power. You do it horizontally among the three branches of the federal government, and vertically between the states and the federal government. The Bill of Rights, as important as it is, is a secondary line of defense.
If a federal government is able to completely destroy state sovereignty by exercising general police power, than individual liberty would greatly suffer. That is something that animates this opinion.
I think the problem with liberals is they don’t understand how the separation of powers relates to individual liberty. They think about individual liberty exclusively in terms of the Bill of Rights, and even then, for a lot of them, it’s about the rights of criminal defendants. And as important as that set of rights is, that is not the totality of individual liberty that the Constitution meant to protect.
Host: David, you’ve argued this case once, and its transfixed the country in many ways. What do you think the prospects are, or the schedule going forward, for when it hits the Supreme Court–Is this going to be decided before the presidential election next year?
Rivkin: Very much so. We now have a split between the two circuits. The Sixth Circuit ruled one way, the 11th Circuit ruled another way on the individual mandate. The Fourth Circuit is going to rule soon. This case would go to the Supreme Court during the coming term, I believe it would be briefed in January-February, with oral argument coming up in March. And my prediction is the decision would come out the last week in June, right before the Court goes to recess. So, it will be very close to elections.
By the way, that’s not something that the Supreme Court would ordinarily enjoy. But there’s no other choice. There’s no way to postpone it. The costs are huge. Billions of dollars are being spent by the states and individuals and businesses. It’s very important to get it resolved.
Host: Wow, right in the middle of the presidential primaries. Should be exciting.