Senators Admit Obamacare Is Unconstitutional

On the morning of Nov. 10, the following 13 Republican state senators all voted to implement a key component of the federal “Patient Protection and Affordable Care Act” by authorizing creation of a Michigan agency to administer the law’s insurance subsidies: Darwin Booher, Bruce Caswell, Judy Emmons, Mike Green, Geoff Hansen, David Hildenbrand, Mark Jansen, Rick Jones, Roger Kahn, Jim Marleau, Arlan Meekhof, John Pappageorge and Randy Richardville.

A few minutes later, these same Republicans (plus several others who voted against creation of the agency - the "exchange") voted for a resolution that included the following assertion about the PPACA:

"The act violates the U.S. Constitution, including the Ninth and Tenth Amendments and the constitutional principles of federalism and dual sovereignty on which this nation was founded."

Some are saying that by their own admission these lawmakers declared that they had just violated the U.S. Constitution, which 10 months ago they all swore an oath to support. These politicians will claim that this characterization is unfair and simplistic, because Obamacare forces lawmakers to choose between two unpalatable options: Implement what they consider an unconstitutional law themselves, or let the federal government do so, possibly in ways that are even more harmful to Michigan.

In fact, the law does force that choice, although for most Michigan residents it will make little difference whether Obamacare’s mandates, cost increases, budget-busting subsidies and eventual rationing are administered by the state or the federal government.

The senators' oath to uphold the Constitution, however, doesn’t contain an “opt-out” clause. State legislators can’t control whether federal politicians and bureaucrats violate the Constitution, only whether they do so themselves.

Nevertheless, this black-and-white analysis is too simplistic. Legislating in a democracy is always about choosing the least-bad policy option, not anyone's ideal. Voters intuitively recognize this flaw in the “worst system of government except for all the others,” and will usually forgive politicians.

But not unconditionally. It requires politicians be honest about the “least bad” choices, and do everything they can to make them better.

Those conditions don’t appear fully in place here. For one thing, there are plausible reasons to believe that acting sooner rather than later to create an Obamacare exchange will further entrench the law, making it harder to invalidate or repeal (details here and here).

Even if one doesn’t fully accept all the arguments, given the inherent uncertainty of the situation, lawmakers have a duty to at least push back against what they themselves labeled an unconstitutional law. At minimum that suggests waiting until the U.S. Supreme Court rules next June, and possibly until presidential election voters give their verdict next November.

And then there is the manner in which some of the politicians involved — who just affirmed their belief that the law they voted to implement is unconstitutional — have pretended the Obamacare agency they would create is really a “free market” and “conservative” institution.

Implementing Obamacare is neither.