Last week, the Obama Justice Department appealed to the Supreme Court a ruling from the Court of Appeals for the 11^th Circuit that held Congress could not compel Americans to purchase and maintain health insurance, the mandate that is the foundation of Obamacare.  Given the conflict among different federal courts of appeals regarding the constitutionality of Obamacare, the Supreme Court is likely to take the case and rule on it by the end of its term in June.

The Patient Protection and Affordable Care Act of 2010, as Obamacare is officially titled, relies by its terms on Congress’ constitutional power to regulate interstate commerce to justify the mandate, though few who voted for the measure seem to have seriously considered the constitutional question.  In fact, it is unclear whether a single member even read the voluminous bill in its entirety beforehand.  Then-Speaker Nancy Pelosi’s statement that “we have to pass the bill so that you can find out what is in it” may sum up the attitude toward deliberation on Capitol Hill.

Whether a law is unconstitutional is a different question from whether it is bad policy, and on some constitutional questions, it is difficult to predict what the Supreme Court will do.  Here there is a serious constitutional problem, and earlier in the debate over Obamacare, too many of the “experts” were wrong to dismiss such concerns as frivolous.  Pelosi herself responded to a reporter’s question on where the Constitution authorizes an individual health care mandate with “Are you serious?”

That this dismissiveness was misplaced is clear from two developments: the rulings of several federal courts striking down the individual mandate and the Justice Department’s strategy in defending the measure in court.  Earlier on, the president insisted repeatedly that the individual mandate, which had penalties attached for non-compliance, did not amount to a tax.  That is a significant distinction to make, because the power to tax conferred on Congress by the Constitution is independent of and broader than the Commerce Clause — plus the courts are generally barred by statute from interfering with the collection of federal taxes.  The act’s language cites only the Commerce Clause as a basis for the mandate with no mention of taxing authority or a revenue-raising purpose.  No doubt there was also a reluctance to be accused of trying to impose a tax increase on the middle class, given the campaign promises of 2008 (which have been broken anyway).  Yet when it came time to defend the mandate in court, the Justice Department argued that the provision did effectively constitute a tax — which amounts to a flip-flop on the part of the administration.  That sudden change of position reflects poorly on the administration, but it also reflects the search for an alternative line of defense out of fear that the courts would strike down the mandate as exceeding Commerce Clause authority.

The Supreme Court’s treatment of the Commerce Clause has changed over the last 75 years.  A series of decisions during the New Deal were so deferential to Congress that they left observers wondering whether the Court would ever observe any limits to what Congress could do under the guise of regulating interstate commerce.  In 1995, for the first time in nearly 60 years, the Court did recognize such a limit and struck down an act of Congress barring guns in school zones, and another federal statute creating civil remedies for violence against women was struck down on similar grounds in 2000.  A 2005 decision, however, upheld federal criminal penalties for the production and use of home-grown marijuana.

Viewing these cases together, it is no surprise that lower courts, which are bound to follow Supreme Court precedent, would find enough ambiguity to disagree with each other.  Yet the constitutional infirmity of the individual mandate is real and unprecedented: Congress has never before passed a law under the Commerce Clause requiring individuals, on pain of a penalty, to purchase a commercial product.  For those who do not make the purchase, there is not even an activity being regulated (unless mere thought counts).  If this does not eviscerate the limitation on Congress created by the text of the Commerce Clause, it is unclear what would.

There is a natural temptation for people in authority to expand their assertions of power beyond proper limits, which is why our framers drafted a Constitution with limited powers dispersed among separate branches.  The judiciary is independent so that it can be a check on the other branches.  Those who occupy Congress or the executive branch, for their part, have the obligation independently to follow the Constitution and not to assume that it is OK to push unconstitutional legislation with the expectation that the courts will fix it.  However spirited we get debating policy, the Constitution should be the starting point in considering legislation.  In this case, you can’t help but wonder whether those who voted for Obamacare gave it a passing thought.

Frank Scaturro is a former Counsel for the Constitution on the Senate Judiciary Committee and Republican candidate for the United States House of Representatives in New York’s 4^th Congressional District.