Health Care Reform Unconstitutional?

ken-cuccinelli-photoNow that health care reform has been revived from its near death experience, it appears that it will face a series of Constitutional challenges.  My home state of Virginia has fired the opening shot. Via Twitter, no less.

To emphasize how ready Virginia is to take the health care overhaul to court, take a look at this tweet from Attorney General Ken Cuccinelli this morning:

“Well, they did it. Once the president signs it into law, we’ll walk across the street and file suit b/c the ind mandate is unconstitutional”

We eagerly await a look at the filings penned by Cuccinelli’s office. But in a lengthy interview on the topic late last week, Cucccinelli indicated he would argue, as his tweet suggests, that requiring individuals to purchase health care exceeds the federal government’s authority to regulate interstate commerce.

He also said that requiring states to participate in a health insurance exchange, as envisioned by the bill, violates state sovereignty.

Apparently, Cuccinelli won’t be alone.

Attorneys general from at least 12 states say they will challenge the constitutionality of the healthcare reform bill passed by the House of Representatives Sunday night.

The threatened action suggests the controversial measure is about to move from the legislative realm into what could become a protracted and messy fight in the courts. The attorneys general say they will sue once President Obama signs the bill into law. They are pledging to take their battle all the way to the US Supreme Court.

“The health care legislation Congress passed tonight is an assault against the Constitution,” said South Carolina Attorney General Henry McMaster. “A legal challenge by the states appears to be the only hope of protecting the American people from this unprecedented attack on our system of government,” he said in a statement.

Florida Attorney General Bill McCollum issued a similar statement late Sunday. “If the president signs this bill into law, we will file a lawsuit to protect the rights and interests of American citizens,” he said.

The comments came after a Sunday night conference call in which attorneys general from 11 states expressed support for legal action to block the law. In addition to Florida and South Carolina, the participating attorneys general were from Alabama, Nebraska, Texas, Oklahoma, Pennsylvania, Washington, Utah, North Dakota, and South Dakota.

While I think the challenge has merit based on both the letter of the Constitution and some recent precedents, I’m skeptical of this working.  For one thing, since the individual mandate doesn’t go into effect until 2013, I’m not sure there’s a case in controversy yet established for that particular prong of the bill. For another, although my mind doesn’t stretch far enough to see this as an “interstate commerce” issue, previous Courts have displayed wildly creative means of making laws they like fit under that umbrella.

Although, I must say, Cuccinelli’s argument on that score is pretty persuasive:

Virginia is the only state to date to pass a law that says its residents cannot be required to purchase health insurance. On Wednesday, Gov. Bob McDonnell is scheduled to sign the legislation, passed by the General Assembly in its recently concluded 2010 session.

The health-care reform bill includes a mandate that requires nearly every American to be insured by 2014 or face a fine. The law provides an exemption for low-income people.

Cuccinelli’s argument is that the mandate included in the reform bill creates a legal conflict between the federal government and Virginia.

“We believe the federal law is unconstitutional as it is based on the commerce clause. Simply put, not buying insurance is not engaging in commerce,” the attorney general added. “If you are not engaged in commerce, the federal government cannot regulate this inaction. Just being alive is not interstate commerce. If it were, Congress could regulate every aspect of our lives.”

Ultimately, the Supreme Court will have to decide the issue and Obama will likely have at least one more Justice on the court by the time this bubbles through the system.

American University lawprof Darren Lenard Hutchinson points out, rightly, that there’s a certain irony in conservatives challenging the constitutionality of an insurance mandate when, “In order to avoid this outcome, Congress could have raised taxes on everyone, created a public plan, and fully subsidized participation by indigent uninsured individuals. This alternative is more expansive than the voted upon exchange system, coupled with a mandate. The latter option uses a market based approach.”

On the other hand, he cites precedent of case law where SCOTUS has upheld laws that, in effect, required people to purchase wheat and medical marijuana rather than grow said crops at home.  This strikes me as more than a stretch.  Congress wasn’t obligating anyone to purchase anything; it was merely regulating who could grow and distribute.

Georgetown lawprof Randy Barnett, writing in yesterday’s WaPo, argues the conservative-libertarian case against the constitutionality of several parts of the bill admirably.  Key takeaways:

But the individual mandate extends the commerce clause’s power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying “cash for clunkers” is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.

If you choose to drive a car, then maybe you can be made to buy insurance against the possibility of inflicting harm on others. But making you buy insurance merely because you are alive is a claim of power from which many Americans instinctively shrink. Senate Republicans made this objection, and it was defeated on a party-line vote, but it will return.

A piece from last August by former Bush DOJ officials David Rivkin and Lee Casey extends this analysis:

The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the “production, distribution or consumption of commodities,” but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.

But even Barnett is dubious of some of the arguments being bandied about.

Several states are considering measures attempting to exempt their residents from an individual health insurance mandate. While such provisions may have a political impact, none is likely to have any effect on the legislation’s constitutionality. Under the 10th Amendment, if Congress enacts a law pursuant to one of the “powers . . . delegated to the United States by the Constitution,” then that law is supreme, and nothing a state can do changes this. Any state power to “nullify” unconstitutional federal laws has long been rejected.

He extends my SCOTUS vote guessing considerably:

Ultimately, there are three ways to think about whether a law is constitutional: Does it conflict with what the Constitution says? Does it conflict with what the Supreme Court has said? Will five justices accept a particular argument? Although the first three of the potential constitutional challenges to health-care reform have a sound basis in the text of the Constitution, and no Supreme Court precedents clearly bar their success, the smart money says there won’t be five votes to thwart the popular will to enact comprehensive health insurance reform.

But what if five justices think the legislation was carried bleeding across the finish line on a party-line vote over widespread bipartisan opposition? What if control of one or both houses of Congress flips parties while lawsuits are pending? Then there might just be five votes against regulating inactivity by compelling citizens to enter into a contract with a private company. This legislation won’t go into effect tomorrow. In the interim, it is far more vulnerable than if some citizens had already started to rely upon its benefits.

But, I’m guessing, not all that vulnerable. As Hutchinson and others have pointed out, even if SCOTUS strikes down parts of the bill as unconstitutional, the rest of the legislation is severable and would thus continue to stand as law.

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James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. J.W. Hamner says:

    I’m no lawyer, but it seems to me that the mandate is a tax… which somewhat ironically, is exactly what people who want it declared unconstitutional have been saying all along. Congress has every right to tax people who won’t buy health insurance to pay for the overall package.

  2. PD Shaw says:

    Like Hamner, my understanding is also that the mandate is really just a tax for not having insurance and there are provisions that specifically state the mandate cannot be used as a source of punishment. I’m not sure what version I was looking at though, but I’m not sure why taxing not having insurance is different than exempting insurance premiums from taxation.

  3. kth says:

    Obviously there are a lot of people who feel that Social Security and Medicare are unconstitutional. But the only thing that even arguably places Obamacare beyond those two programs, whose constitutionality has been repeatedly upheld, is the individual mandate.

    Even in the highly-unlikely event that the individual mandate were to be stripped out, it could easily be restructured as a refundable tax credit for people who *do* purchase qualifying plans. And it would be hard to vote against it, since the insurance company regs would still be in place, made far more onerous by the fact that people could now wait until they got sick to sign up for coverage.

  4. James Joyner says:

    Congress has every right to tax people who won’t buy health insurance to pay for the overall package.

    Why? From what source do they derive this power?

    Obviously there are a lot of people who feel that Social Security and Medicare are unconstitutional. But the only thing that even arguably places Obamacare beyond those two programs, whose constitutionality has been repeatedly upheld, is the individual mandate.

    But that’s a big difference. The first two are federal programs paid for with federal taxes. The mandate is taxing people for not buying something from a private company.

    Even in the highly-unlikely event that the individual mandate were to be stripped out, it could easily be restructured as a refundable tax credit for people who *do* purchase qualifying plans.

    That actually strikes me as plausible. But why didn’t they go that route to begin with?

  5. Triumph says:

    Given the fact that Obama’s health plan will have bureaucrats plucking people out of their doctors’ office to appear before a death panel, I am pretty sure that this will be ruled unconstitutional.

    Of course, Obama has packed the court with “wise Latinas” who don’t share American values, so a rational decision could be up in the air.

    Last night’s vote was just the latest on the road to AL- Quaeda-style fascism.

    The fact that the government now has a mandate to forcibly mandate euthanasia and is requiring you to pay for your own death is typical of Obama’s hopey changey communism.

  6. Herb says:

    The mandate as tax…interesting.

    I was thinking more about the interstate nature of healthcare itself. Not every state has the best oncologist, for instance. The drugs or medical equipment made in this state are sold in that state. I don’t see why the commerce clause shouldn’t apply anyway.

  7. PD Shaw says:

    Because Obama campaigned not to raise taxes on the middle class.

    The mandate tax is actually pretty regressive if you look at who is likely to pay it: CBO Analysis

  8. kth says:

    That actually strikes me as plausible. But why didn’t they go that route to begin with?

    Because it’s fiscally irresponsible if you don’t raise taxes across the board to offset the credit, and more socialistic if you do fund the credit with a broad-based tax increase.

  9. J.W. Hamner says:

    Why? From what source do they derive this power?

    Article I, Section 8? I don’t see how levying a tax on people who can afford to buy insurance but don’t is fundamentally any different than levying one on the top 1% or whatever. Or a tax on people who buy cigarettes for that matter.

    The fact is they’re not “making” anybody buy insurance, but levying a tax on those who don’t… which is a distinction with a difference I think… probably not to the majority of your readers, but I suspect to the courts. But once again: IANAL.

  10. john personna says:

    Why? From what source do they derive this power?

    The Energy Tax Act of 1978 established a Gas Guzzler Tax on the sale of new model vehicles. What’s different, other than that this tax enforces a different social norm?

  11. Zelsdorf Ragshaft III says:

    When do they force us to buy Chevys? How about if you want socialized health care, move to Canada. If they try to force this shit on me, I will introduce them to my little friend.

  12. kth says:

    Ragshaft, if you are unwilling to buy health insurance, you can always try to evade the consequent tax penalty. But you first might want to ask Wesley Snipes how that worked out for him.

  13. James Joyner says:

    The Energy Tax Act of 1978 established a Gas Guzzler Tax on the sale of new model vehicles. What’s different, other than that this tax enforces a different social norm?

    One is a tax on interstate commerce. The other is a penalty for not taking an action in intrastate commerce the government wants you to take.

  14. john personna says:

    So you’d be happy if they raised taxes on everyone by $2k and then granted everyone a $2k “insurance buyer’s tax credit”?

    Funny how something that is mathematically equivalent can have such a different feel, eh?

  15. john personna says:

    Zelsdorf could try establishing The Church of The Free Market and go for the religious exemption.

  16. James Joyner says:

    So you’d be happy if they raised taxes on everyone by $2k and then granted everyone a $2k “insurance buyer’s tax credit”?

    That might be too transparent to satisfy judicial scrutiny. But, yes, there’s ample precedent for tax credits for engaging in positive conduct. Even some for engaging in negative conduct (e.g., sin taxes). None that I’m aware of for not engaging in positive conduct.

  17. john personna says:

    What an odd sentence, that the mathematical equivalence is “too transparent” for “judicial scrutiny.”

    It is exactly the transparent equivalence that deflates this “mandate” hoo-rah.

    What is it, commercial fishermen have long enjoyed federal tax credits? That is mathematically equivalent to a tax on non-fishers. Do you suffer from your mandate to be a fisherman, and your refusal all the same, James?

    Have Federal troops had to drag you out from under the bed to go fish?

  18. john personna says:

    BTW, we agree that there should be no Federal homebuyer’s tax credit, but I don’t expect anyone to defeat it before the Supreme Court.

  19. john personna says:

    (A “mandate” to be a first time home buyer.)

  20. James Joyner says:

    What is it, commercial fishermen have long enjoyed federal tax credits? That is mathematically equivalent to a tax on non-fishers. Do you suffer from your mandate to be a fisherman, and your refusal all the same, James?

    First, the proponents of the measure are calling this a mandate. Because, you know, of it being a mandate.

    Second, while I appreciate that there’s mathematical symmetry between incentives and credits on the one hand and penalties and taxes on the other, they’re different entities. If I want a tax credit, I can become a commercial fisherman. If I don’t, I suffer no penalty aside from paying the standard tax rates.

    But let’s say that, rather than an outright mandate, Congress substituted a “credit” scheme for the 70 percent of us (or whatever) who either buy our own insurance or are covered by our employer. That may well be considered a different matter because of the sheer volume — especially if done in proximity with a tax hike that’s directly offset by said credit. At that point, it’s pretty transparently a penalty on the 30 percent, not a credit for the 70 percent.

  21. James Joyner says:

    BTW, we agree that there should be no Federal homebuyer’s tax credit, but I don’t expect anyone to defeat it before the Supreme Court.

    I agree, although for different reasons. I actually do view these credits as penalties on those who can’t afford to buy. A tax on the poor and/or urban!

  22. john personna says:

    To be honest I’d be more comfortable myself with the “tax+credit” solution, but I recognize that as an economic dysfunction on my part.

    When something is equivalent, in dollars and cents, then it is equivalent. It is just our mental baggage that makes it seem otherwise.

    And yes the “mandate” name is funny. It’s not like there is a direct link to criminality. You don’t get jailed for not having health insurance (just like you don’t get jailed for not fishing). You just (potentially) get jailed for not paying your taxes.

  23. john personna says:

    BTW, a true mandate would have a direct criminal penalty. That is the key difference.

  24. Redhawk says:

    This Health Care Reform is COMMUNISM.
    Plain and simple!
    The name Boccieri = Stalin; Castro; Hitler

  25. Steve says:

    Unconstitutional? Wait? So when are we bringing the rest of the government’s shit to the table? Paying taxes is unconstitutional! The rich are trying to save their asses. WE ALL ARE IN THIS TOGETHER. HELP OUT YOUR NEIGHBOR YOU LAZY SELFISH LARGE EGO AMERICANS. What happened to doing good for people without expecting? My 2 cents, not worth much but its my voice and that is all I have!