King County's budget problems, leaky dams, deteriorating bridges notwithstanding, there are 24 hours in a day, and King County politicians have found time to grandstand about Obamacare. On May 10, the King County Council narrowly passed a resolution praising the Obama healthcare bill and, in the words of a statement from the four members who opposed the measure, taking “a brazen political shot at a former colleague, Washington State Attorney General Rob McKenna."
McKenna and, at last count, 19 other state attorneys general and governors, are, of course, suing the feds on grounds that portions of Obamacare are unconstitutional. McKenna has written that health care reform is too important to rest on shaky constitutional ground. He is no doubt right. But the fact that a group of Republican attorneys general announced the suit when the ink was barely dry on the legislation suggested to a whole lot of people that political considerations weren't irrelevant.
Inevitably, the suits made political waves. "I don't know who (McKenna) represents," Gov. Chris Gregoire said. "He doesn't represent me."
Until recently, the major news media and the constitutional experts generally quoted in healthcare stories made it seem that the AGs' suits were quixotic at best. At worst, the plaintiffs were simply political posturing at taxpayer expense. (That would be a novel practice, wouldn't it?) But on May 11, The New York Times ran a piece suggesting that the constitutional question might be more of a tossup. "Some legal scholars, including some who normally lean to the left, believe the states have identified the law's weak spot and devised a credible theory for eviscerating it," Kevin Sack reported.
The constitutionally iffiest part of Obamacare is the "individual mandate" — or, as the legislation eumphemistically puts it, the "shared responsibility" — that requires individual citizens to buy policies from private insurance companies. The math is pretty simple. Basically, all insurance requires people who are well to pay for people who are sick. If you want to increase the number of sick people covered, you'd better increase the number of healthy people who have to pay.
You could do this by establishing a single, government-run system that swept in your entire population. Or you could jerry-rig a system that relied on a plethora of private insurance companies. The administration and a majority of the Congress have chosen Plan B. (Whatever the legislation's other virtues — and it has many — it qualifies as the insurance industry preservation act of 2010.) They want to make (almost) everyone insurable. Therefore, they have to make (almost) everyone pay. This is obvious. Hence, individual mandates.
Technically, no one is forced to buy. But a lot of people not covered under employer-based plans will face tax penalties if they don't.
Exactly what kind of minimum policy an uninsured citizen will be forced to buy isn't clear. That's one of McKenna's criticisms, albeit not one of his constitutional arguments. "You have to buy what the law says," he observes, but "we don't know what that is yet."
The key question is whether or not the commerce clause of the Constitution gives Congress the power to do this. During the New Deal, the U.S. Supreme Court basically decided that if Congress invokes the commerce clause, the laugh test no longer applies. Congress can do virtually anything in the name of regulating interstate commerce. The court will have to decide whether or not that's still true.
After the Supreme Court's 1942 ruling in Wickard v Filburn that the federal government could limit the acreage a wheat farmer planted even if he claimed the extra acreage was purely for domestic use, the sky was the limit. (Did farmer Filburn really plan to use an extra 239 bushels at home? Hey, his family ate a lot of bread.) The court didn't toss a statute that invoked the commerce clause for more than half a century. When legal scholars talk about the decades of commerce clause jurisprudence that the court would have to overturn in order to find the individual mandate unconstitutional, that's what they mean.
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