So, the final version of the Obama health care reform plan will likely pass Congress this weekend and a number of Republicans have already started backing away from their silly pledge to repeal it. Of course, the plan puts rocket boosters on the budgetary train that was already sending America directly into bankruptcy, but that doesn't matter a whole lot at this point, now does it? After nine years of hyper-sonic federal spending, who's going to even notice?Granted the individual states have only begun to fight, so this train wreck might yet be averted. As I write this, fourteen state's attorneys general are suing the federal government in a challenge to the constitutionality of the Patient Protection and Affordable Care Act (PDF.)
My intial instinct was to think they would win. Never before has the federal government instituted a mandate for individual citizens to purchase a product from private industry. Prior to last Sunday night, whenever Washington has created a mandatory program, it has directly administered it and provided the benefits and that's not the case with heath care reform. I'm inclined to think that there's a reason for that. That also appears to be the position of the states in their filing.
The issue at the heart of the lawsuit is the constitutionality of the so-called "individual mandate," which requires most Americans to have an insurance plan or else pay a federal penalty.As I noted earlier, I'm philosophically inclined to agree with this position. I feel that the individual mandate is an outrageous intrusion of the government into the private affairs of the citizenry. However, that's hardly a legal or constitutional position. It's a philosophy, albeit a rather sound one.
"The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying health care coverage," the lawsuit reads.
The Department of Justice has said it is confident that the law is constitutional and would prevail in a court challenge.
Here's what's at issue: The Constitution gives Congress the authority "to regulate commerce." In other words, once someone engages in commerce, the government has the power to regulate that activity.
But opponents say that the "commerce clause" does not give the government power to require an individual to buy something — especially insurance for the health of one's own body.
"Just being alive is not interstate commerce," said Virginia Attorney General Ken Cuccinelli in a statement before the lawsuit was officially filed. Virginia's General Assembly passed a law earlier this year stating that no resident can be compelled to have health insurance.
Some legal experts agree.
"Never in this nation's history has the commerce power been used to require a person who does nothing, to engage in economic activity," said Professor Randy Barnett of Georgetown University Law Center.
Mandating that all Americans purchase health insurance is akin to "requir[ing] every American to buy a new Chevy Impala every year," to help the automobile industry, Barnett said.
That being the case, I assume that this will eventually end up before the Supreme Court, so I started thinking about precedent and case law that might be relevant, which is something the states didn't do in their filing.
In thinking about case law, I tried to stick with the most recent cases available, as the current Court doesn't seem to have much respect for precedent. That's why I'll focus on two cases in which most of the current justices were sitting.
Because the Commerce Clause is going to be central to the challenge, I started there. The Court almost never rules against Congress in Commerce Clause cases. Most obscenely, they supported the federal government in Gonzales v. Raich, a challenge to California's medical marijuana law.
In Raich, the Court held that the doctrine of federal supremacy allowed the DEA to continue to arrest Californians in possession of marijuana, despite a state ballot initiative that allowed said possession for medical purposes. Furthermore, the majority specifically relied on the Commerce Clause to so rule, the thinking being that the pot in question could cross state lines and was therefore subject to federal regulation. The idea that surrounding states might not share California's laws was immaterial in the eyes of the Court. The potential for interstate movement was enough for them.
If that standard can be applied to marijuana, it can certainly be applied to doctors, patients and medical services. In fact, it would almost have to be. Raich, in fact, is only the most recent case that applies the Commerce Clause this way. But it's hardly unique. For almost a century, the Commerce Clause has been used to justify things like child labor laws, federal workplace standards and the like. If the clause applies to medical marijuana, it can potentially apply to anything at all.
Then there's the question of whether the government can require the people to surrender liberty to the profit of private industry. Sadly, the answer to that is an unequivocal yes, as Kelo v. City of New London demonstrates.
In Kelo, the justices ruled that the Fifth Amendment's "Takings Clause" specifically allowed for eminent domain to be applied against homeowners to encourage purely private economic development. The underlying reasoning in Kelo was that the private development would enhance the tax base of New London and thereby constitute a "public use."
The Kelo philosophy could easily be extended to the Patient Protection and Affordable Care Act. For example, the government could argue that the Act is an exercise in deficit reduction (although I suspect it won't accomplish that) and that is properly the jurisdiction of Congress rather than the states. Also, if under Kelo, a private home can be surrendered for public use, certainly health insurance can be as well.
Moreover, the government is likely to argue that ObamaCare is primarily a taxation issue, since there will be tax credits and subsidies for the purchase of health insurance and penalties for failure to do so. All of this will be administered by the IRS and that's a power specifically granted to Congress under Article One. I'm not aware of the Supreme Court ever ruling against Washington on a taxation matter since that power is so clearly established in the Constitution.
Kelo, like Raich, is an absurdly wrongheaded decision. Kelo effectively gutted the Takings Clause and Raich extended the Commerce Clause to virtually anything the federal government wanted.
However, both are the law of the land and were decided only five years ago, with seven of the nine current justices sitting. It would be very difficult to imagine even this Court effectively reversing both in one decision. Having said that, this Court has revered itself on very recent decisions regarding late-term abortion and affirmative action. And in District of Columbia v. Heller, it reversed seventy years Second Amendment jurisprudence. The current Court is far more revolutionary than it is traditionally conservative, so it's difficult to predict what they'll do.
I'm not a fan of ObamaCare and think that it will be ruinous to the economy, particularly given the current deficits racked up by presidents Bush and Obama. I also have serious doubts that the measures intended to actually pay for it will ever be implemented by the Congresses of 2014, 16, and 18. In the end, the Patient Protection and Affordable Care Act will probably be yet another multi-trillion entitlement signed by recent presidents that no one ever gets around to paying for.
But given recent case law and the Court's odd view of federalism, I would have a hard time saying that it's actually unconstitutional or predicting that the Supreme Court will find it as such.
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