This spring, the Supreme Court will hear arguments on the constitutionality of the Affordable Care Act, also known as Obamacare, in a suit brought by 27 of the 50 states. While liberals are largely galvanized in their support for Obamacare, conservatives are not uniformly lining up behind the states' case. Michael Greve of the American Enterprise Institute recently wrote about two primary issues on which the court will rule: the "individual mandate," a subject of increasing debate among conservatives, and the expansion of Medicaid. While Mr. Greve is almost dismissive of the impact of the first issue either way it is decided, he is unequivocal about the latter: "However, the states won’t prevail on their Medicaid claim. Nor should they." While conservatives might disagree about whether or not the states will prevail, we should be unanimous in our conviction that they should.
Throughout Mr. Greve's essay is an undertone of you-asked-for-it relative to the states and the federalism balance. While he makes a good case that foolish decisions have led to entanglements for the states that call their sincerity into question, his conclusions are less convincing. He frames the plaintiffs' case this way: "Constitutionally, the states’ brief hangs its opposition on a single sentence in the Supreme Court’s 1987 decision in South Dakota v. Dole...," and then proceeds to discuss how much money is involved, what constitutes coercion, and the states schizophrenic opposition to both funded and unfunded federal mandates. But does past acquiescence to unconstitutional programs or statutes impair the right to contest the further expansion of those programs or statutes? To look at it another way, should citizens on welfare, for example, be expected to have diminished rights to free speech or trial by jury because welfare programs over time have become "bigger and more generous?" This is nothing more than a creeping tyranny by government largess on the installment plan.
Perhaps he is just being pragmatic, but Mr. Greve even goes on to say that "...the states do not come to the table with clean hands." But even a suspect with a long criminal record does not forfeit constitutional protection for lack of "clean hands." Besides, the Supreme Court is not a "table" at which to plea-bargain. It is a court of law. Just as prosecutors are routinely barred from raising the issue of prior convictions of the defendant during a criminal trial, so the states checkered past should not tip the scales of justice. In the Obamacare case, the states may be thought of as the sadder-but-wiser girl who wants a fair shake from the court despite her youthful indiscretions, and the court is obligated to grant just such an unbiased hearing.
Conservatives must not continue to surrender to the Whisper-Down-the-Lane jurisprudence that has led to the caricature of constitutional law that currently dominates our legal system. Precedent based on precedent based on precedent with a little legislative overreach thrown in for good measure, and soon any federal government program can be made to look reasonably constitutional. But if the founding fathers had imagined that federal legislation with the breathtaking scope of Obamacare could someday be squared with their concept of limited government, they would have tossed their drafts of the Constitution in the bottom drawer with their old copies of the Articles of Confederation and sent James Madison back to Montpelier to try again.