February 2010:
Unconstitutional Health Care Reform?

Washington Watch | February 2010
By Bruce Moyer

Even before the Massachusetts election held in mid-January fundamentally altered the prospects of comprehensive health care reform legislation, there were signs of potential trouble on the legal front. Legal experts and lawmakers alike were focusing in on one of the lynchpins of comprehensive health care reform—the “individual mandate”—and its constitutionality. That mandate would require all Americans to purchase health insurance if it is not provided by their employer, regardless of whether a citizen needs it, wants it, or can afford it.

If a scaled-down health care package survives in Congress and retains the individual mandate, one or more Republican governors are still likely to file lawsuits challenging the legality of the mandate. The governors will contend that only states—not the federal government—can require citizens to purchase health insurance. Witness, for example, what the state of Massachusetts already has done in requiring residents of the Bay State to purchase health insurance or risk paying a fine.

The lawsuit will rest on the constitutional precept that the federal government may legislate only when it exercises powers specifically enumerated in the Constitution—such as the power to regulate interstate commerce or spend money for the general welfare, or impose taxes. The Commerce Clause of the Constitution, in fact, is the basis on which congressional proponents of the individual mandate justify its validity.
The proponents’ reliance upon the Commerce Clause has prompted a group of conservative and libertarian legal experts, led by Washington lawyers David Rivkin and Lee Casey, to contend that the Commerce Clause is not broad enough to permit Congress to impose the health insurance mandate or to enforce that mandate through the imposition of a penalty. They point to the Supreme Court’s decision in 2000 in United States v. Morrison, which struck down a portion of the Violence Against Women Act, contending that the Supreme Court limited the reach of the Commerce Clause to economic activities that “substantially affected” interstate trade in goods and services. The ruling in Morrison shows that the commerce power is not unlimited, Rivkin and Casey argue, and that the Supreme Court has never permitted Congress to require Americans to buy any good or service as a condition of lawful residence in their country. 

Indeed, the Supreme Court has never validated congressional action that has penalized inactivity—such as failing to buy health insurance—in the interest of regulating interstate commerce. As Sen. Orrin Hatch (R-Utah) explains it, there is “a fundamental difference between regulating activities in which individuals choose to engage and requiring such activities” just because an individual exists. For this reason, last summer, the Congressional Research Service conducted a legal analysis on the constitutionality of the individual mandate and summed up its findings by saying that a “novel” question exists as to whether the Commerce Clause empowers Congress “to require an individual to purchase a good or service.”

Proponents of the individual mandate point to a string of cases that has continued to expand the reach of the federal government under the Commerce Clause. Relevant cases begin with Wickard v. Filburn, a 1942 ruling that gave Congress the authority to limit the amount of wheat that farmers grew to feed their own livestock. The most recent case is Gonzales v. Raich, a 6-3 decision handed down in 2005 that validated congressional efforts to criminalize the growing of marijuana at home for a person’s own medical use, even if this activity was legal under a state’s own laws. Raich held that it is “necessary and proper” for Congress to regulate local behavior when doing so is “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” Applying that thinking to the justification of the individual mandate, proponents argue that congressional imposition of an individual mandate is “necessary and proper” because, without such regulation of interstate commerce, society will continue to be burdened with the costs of emergency room visits and other expenses incurred by those who are uninsured.

Who is likely to win these dueling arguments about congressional power and the Commerce Clause is anyone’s guess, and there are no clear winners. Even if health care reform dies this year, sooner or later Congress will be forced—by continued skyrocketing health care costs and growing numbers of the uninsured—to deal with health care reform. And those legislative efforts, if they seek to create near-universal health coverage, will likely rely upon use of an individual mandate. By that time, however, another Obama appointee might also have joined the Supreme Court, one more favorably inclined to find room within the Commerce Clause to validate the mandate’s existence.

Bruce Moyer is government relations counsel for the FBA. © 2010 Bruce Moyer. All rights reserved.


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