Cato chief predicts health-care law will fall

There’s about a 55 percent chance the Supreme Court will strike down the Patient Protection and Affordable Care Act, but it was dicey there for awhile.

That’s what Robert A. Levy, chairman of the board of the libertarian Cato Institute, told a gathering of the Las Vegas chapter of the Federalist Society on Tuesday.

Levy, an opponent of the health care law who’s rooting for it to be overturned, said after the gathering he had his doubts about Justice Antonin Scalia, who has betrayed an expansive view of the Commerce Clause in the past. But when Scalia asked some key questions — can the government require that we all eat broccoli, since we’re all in the food market and broccoli is a product of interstate commerce? — Levy said he was reassured.

But past votes are key to understanding current court controversies, said Levy, the author of a book called “The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom.” The health-care law was presaged by a New Deal-era case in which the court ruled even a farmer growing wheat on his own farm for personal consumption was involved in interstate commerce, since he would otherwise have purchased wheat for himself or sold his wheat to others. That case, which is on Levy’s dirty dozen list, gave way to a sweeping rationale that all Americans at some point will need to be in the health-care market, upon which the law’s individual mandate was built.

“This individual mandate would extend the power of the federal government to virtually all manner of human conduct, and non-conduct,” Levy said.

But Levy didn’t blame only liberals trying to fix health-care problems for the abuse of the Commerce Clause. When Republicans call for federal medical malpractice reforms, they justify the legislation by citing the authority of the Commerce Clause, too. In Levy’s view, the clause was originally intended only to allow the federal government to police trade between the states, creating an American “free trade zone.”

“If the clause had been understood to grant Congress the limitless regulatory power it now exercises, the Constitution would never have been ratified,” he argues in a white-paper briefing. (The Cato Institute provided legal briefs on behalf of the 26 states seeking to invalidate the law.)

Although some see a political advantage for President Barack Obama should the law be overturned — he can argue he fought to fix a problem and was fought by Republicans and a conservative court majority — Levy doesn’t buy it. He says that argument will appeal to people who already support the president, but not to independent voters who will see the central accomplishment of Obama’s first term rejected as running afoul of the Constitution. “This bill is very much unpopular,” he says.

But if the bill is upheld, Levy says, it will energize the right to defeat the president in the hopes of overturning the law under a new president. “I think he loses if this is struck down, I think he loses if it’s upheld,” Levy said.

(The issue is complicated by potential Republican nominee Mitt Romney’s embrace of a health-care mandate in Massachusetts. But Romney has offered that the states have powers under the 10th Amendment not accorded to the federal government.)

In fact, it’s the Ninth Amendment — which says there are more rights than those spelled out in the Bill of Rights — and the 10th — which reserves powers to states and the people that are denied the federal government — that make up the Cato philosophy, one Levy traces back to the Constitution itself.

“I think it’s OK to say that the Founders were, in fact, libertarians,” he said.

Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at 387-5276 or SSebelius@reviewjournal.com.