Strip Searches and Obamacare

Only a few days after deliberating over the eventual fate of the Affordable Care Act, the Supreme Court issued the opinion in Florence v. Board of Chosen Freeholders, which allows prisons to strip-search detainees regardless of whether prison officials have a reasonable suspicion that the prisoner may be carrying contraband. The decision precipitated a firestorm of condemnations from those who were astounded that the same justices who treated Obamacare with such skepticism would allow the state to humiliate nonthreatening prisoners. But those commentators learned the wrong lesson from the erroneous decision in Florence. In fact, Florence demonstrates precisely why the Supreme Court must strike down the Affordable Care Act.

The issue of the constitutionality of the individual mandate is a question of power—whether Congress has power over people who have not purchased health insurance. The issue in Florence was also a question of power, but of a slightly different nature. In Florence, it was undeniable that prison officials had power over their detainees. Even though some detainees were undoubtedly innocent, just as Mr. Florence eventually proved to be, the officials had gone through the requisite procedures. The only question in the case was whether the Fourth Amendment, which protects people from unreasonable searches and seizures, creates a carve-out for those already under prison officials’ power.

Basing their opinion on the traditional deference given to prison administrators, the Court in Florence held that the Fourth Amendment creates no such carve-out for nonviolent detainees. The Supreme Court has often acknowledged that they do not understand how to run a prison, not least because they are very unlikely to have spent any time there. Therefore, once detainees cross the threshold into the ambit of prison officials’ power, the Court has generally been reluctant to second-guess how that power is used.

For similar reasons, courts have been highly deferential to Congress when it is acting within the scope of its enumerated powers. Once Congress is properly regulating commerce, courts have generally deferred to congressional judgment on the basis that judges are unqualified to decide whether something is an effective or ineffective regulation. Courts are much better at deciding whether a power exists than deciding if a power was exercised in a reasonable fashion. Whether a power was exercised reasonably is usually treated by the courts as an insanity test—if the use of the power was not totally insane, then it is reasonable. In short, once power is granted, it is much more difficult to protect ourselves against abuses of that power.

This is precisely why the Framers of the Constitution carefully delineated the scope of congressional powers. It is easier to preserve liberty by denying power over large parts of our lives than by granting expansive power and then using individual rights to carve out small chunks of liberty for chosen individuals/activities. In the former system, liberty is presumed and power is the exception. In the latter, power is presumed and liberty is the exception.

The challenge to the Affordable Care Act is about preserving this system of broad liberty and limited power that forms the backbone of our constitutional structure. If Congress is allowed to take power over those who have failed to purchase health insurance, then Congress’s power over that part of “commerce”—namely, those who may enter into commerce, a.k.a. everyone—will be nearly absolute. Like prisoners subject to the whims of prison officials, our ability to challenge Congress’s subsequent abuses of power will be limited to the few available individual rights claims. Also, like prison officials, courts will give Congress extreme deference to regulate the nation’s “commerce.”

Many critics of the challenge to the Affordable Care Act continually invoked “deference to Congress’s reasonable judgment” as a reason why the individual mandate should be upheld. This misunderstands the question at issue. Congress, like prison officials, only gets deference after they are acting within the realm of their powers. They do not and should not get deference in deciding whether or not something or someone is within the scope of his power. This would be akin to allowing prison officials to incarcerate someone if they reasonably believed he committed a crime. For the purposes of law, someone either is or is not a criminal and something either is or is not commerce. “Reasonable belief” has nothing to do with it.

But many proponents of the constitutionality of the individual mandate argue just that: that Congress had a “reasonable belief” that some of those who lack health insurance will shift costs onto others in the future. Again, this misunderstands the question at issue. Congress has power to regulate commerce, not the possibility of future commerce or, even worse, a reasonable belief in the possibility of future commerce. The Court disavowed this line of reasoning in Lopez and Morrison when they refused to examine the “fit” between commerce and guns in school zones (Lopez) and violence against women (Morrison).

I won’t be so hyperbolic and claim that, in the event Obamacare is upheld, humiliating strip searches await all of us. Instead, I will simply reiterate that it will be much harder to make constitutional arguments against such humiliations, which is disturbing enough.