'Obamacare' is constitutional. But will the Supreme Court care?
If the Court upholds constitutional precedent rather than judicial activism, it will throw out the lawsuit brought by McKenna and the other attorneys general.
It’s now a truism that the United States Supreme Court will ultimately decide the fate of health care reform. What’s not widely recognized is that, based on existing Supreme Court precedent, Congress clearly has the power to enact the Patient Protection and Affordable Care Act.
The lawsuit challenging the Affordable Care Act originally filed by Attorney General McKenna and 12 other state attorneys general contends that the Act is unconstitutional in its entirety. The federal government, the Attorney Generals’ complaint states, lacks the constitutional power to regulate insurance, which is how most Americans pay for health care, because this is “the very type of police power the Constitution reserves to the States.” Therefore, they urge the court to declare “the entire Act unconstitutional.”
But existing Supreme Court precedent makes clear that the Constitution, as interpreted for decades, doesn’t support this position. The State AGs’ lawsuit implicates a clause in the Constitution known as the Commerce Clause. This gives Congress the power to “regulate Commerce ... among the several States.” It’s the constitutional provision that allows Congress to pass laws governing business transacted across state lines.
To be exact, according to past Supreme Court decisions, the Commerce Clause empowers Congress to regulate “those activities that substantially affect interstate commerce.” Since shortly after the New Deal, the high court has interpreted the Commerce Clause as giving Congress very broad power to pass laws regulating business transacted across state lines.
From 1937 to 1994, the Supreme Court didn’t invalidate a single law as unconstitutional for exceeding the scope of Congress’s Commerce Power. In the only two cases since the New Deal in which the Court did declare that Congress had overstepped its power over commerce, the congressional actions in question were aimed at criminal behavior, not commerce. In the 1995 case United States v. Lopez, Congress tried to claim Commerce Clause authority to restrict gun possession near schools. In 2000, in United States v. Morrison, Congress tried to create a federal remedy for crimes targeting women. In both cases, one could agree that Congress should intervene in these types of crimes or not. But no one could seriously claim that the subject of the legislation was interstate commerce.
The Affordable Care Act doesn’t address criminal conduct, and it doesn’t take an active imagination to recognize that the regulation of how we pay for health care substantially affects interstate commerce. When we’re injured out of state, our insurers are still required to provide coverage. The minimum-coverage and guaranteed-issue provisions, which require everyone to buy insurance and prevent insurers from excluding people with preexisting conditions, are specifically intended to spread the costs of health care across the United States. Health insurance reform, which obviously is a major part of health care reform, would seem to be just the type of legislation the Constitution empowers Congress to enact.
Almost every constitutional scholar who’s analyzed the issue has concluded that, if precedent is followed, health care reform is constitutional. And so far, the majority of lower and intermediate courts have applied the Commerce Clause as broadly as it’s been interpreted by past Supreme Courts, and upheld the Affordable Care Act.
The first court of appeals in the country to address a challenge to the Affordable Care Act affirmed its constitutionality. In late June, the U.S. Court of Appeals for the Sixth Circuit noted that everyone, no matter his or her state, eventually gets sick and uses health care, and hospitals across the country are required by law to provide care regardless of ability to pay. Decisions by some to forego health insurance drive up the cost of insurance for others across the country. Therefore, the court reasoned, the choice to forego health insurance substantially affects interstate commerce.
Of the seven courts that have decided constitutional challenges to the Affordable Care Act, two trial courts struck down some or all of it. Both courts ruled that the minimum coverage requirement exceeded Congress’s Commerce Clause power because it purported to regulate inactivity rather than economic activity. They pointed out that in no past case has the Supreme Court addressed legislation where Congress attempted to use its Commerce Power to require individuals to purchase a good or service –in this case, minimum health care coverage. Regardless of the longevity of Commerce Clause precedent, they ruled that this case doesn’t fit within that precedent at all.
The Sixth Circuit Court of Appeals, along with most legal academics, didn’t find the distinction between economic activity and inactivity meaningful in determining whether behavior affects interstate commerce. The appeals court noted that the Commerce Clause doesn’t distinguish between activity and inactivity, and neither has any past Supreme Court. The court then circled back to the test for Congress’s Commerce Power, whether the regulated behavior substantially affects interstate commerce. It had no difficulty finding that individuals’ decisions to forego health insurance (to remain “inactive” in the market) increases everyone else’s health care costs. These individuals eventually get sick and receive uncompensated care. The cost of this care is then shifted to those citizens and employers across the country who purchase health insurance.
So if Supreme Court precedent is so clear, why did the 13 state attorneys general challenge the constitutionality of the Affordable Care Act?
The answer: It's not clear whether this Supreme Court will follow precedent. The AGs hope that the Supreme Court will overturn established precedent and rule that health care reform is beyond the constitutional power of Congress. And that’s not a vain hope. Just a few weeks ago, on August 12, a second U.S. court of appeals, in Florida, ruled that the minimum coverage requirement in the Affordable Care Act is indeed unconstitutional. Precedent, it held, simply didn’t apply. Without so much as mentioning its sister circuit’s opinion, the appeals court found the “economic mandate” to buy minimum health care coverage distinguished the Affordable Care Act from every other act of Congress ever to come before the Supreme Court.
It certainly is the prerogative of the AGs to ask the Supreme Court to overturn established precedent. But they must also acknowledge that this is the very definition of judicial activism. As Chief Justice Roberts said during his confirmation hearings, “The proper exercise of the judicial role in our constitutional system requires a degree of institutional and personal modesty and humility.” These “proper” judicial attributes ensure continuity, so that the interpretation of the Constitution is not whipsawed by constantly changing political winds.
An examination of Supreme Court precedent shows that the attorneys general are asking the the Court to disregard Chief Justice Roberts’ words. It may be politically expedient for them to urge the high court to abandon the more than half-century-old “substantially affects” formula when it comes to the Affordable Care Act and its minimum coverage requirement. But there’s no contesting that they're pleading for judicial activism.
Like what you just read? Support high quality local journalism. Become a member of Crosscut today!
Twitter
Facebook
RSS Feeds
Comments:
Posted Wed, Sep 7, 11:45 p.m. Inappropriate
How about we put a stop to congress sending 2 billion dollars per year to Pakistan and use the 2 billion dollars per year to pay for our healthcare system where it would then be possible to put the insurance companies out of business since their only concern for our health is as much profit and healthcare is of little concern. Why else would they drop high risk people out of the system and under the new law will charge higher risk people a lot more for premiums. The insurance is a ponzi scheme. Get rid of it and that solves our healthcare issues. Pay cash for services. If the providers don't like it then they can go elsewhere. WE are the laughing stock of the world over healthcare issues. No other country treats its citizens in this way and forces them to buy coverage.
Posted Thu, Sep 8, 7:53 a.m. Inappropriate
Democrats pissed in the whiskey that should have been health care reform. After taking a bunch of money from sovereign indian tribes (Patty Murray took money from over thirty tribes during her last campaign, from as far away as Connecticut and Mississippi), they did what bought-and-sold politicians always do: they repaid their benefactors with legislative largess. In this case "members of indian tribes" were exempted from the personal mandate (buy insurance or pay a fine!) that the rest of us were to labor under. I really hope SOMEONE in this ongoing discussion will broach the propriety of promulgating laws that treat people differently based on the color of their skin.
Posted Thu, Sep 8, 8:35 a.m. Inappropriate
The author explains why he believes the Supremes will uphold the requirement that Americans buy health insurance or face a federal penalty. He bases it on commerce clause decisions made by the court since Roosevelt's court packing plan of the 1930's helped that era's court change 100 plus years of commerce clause precedent. One of the cases of those years found that the food a farmer grows exclusively to feed his or her own family can be regulated since it affects interstate commerce. That was a bad decision that should be overturned rather than used as precedent to make our citizens buy a product deemed good for them by the government.
The state's attorney generals who have brought the suit wonder whether any constitutional limits exist on federal power under the commerce clause if the Supremes uphold the mandate. The author seems to believe that the proper answer is none.
For an alternative legal analysis from Scotusblog: http://www.scotusblog.com/2011/08/why-the-court-will-strike-down-ppaca/
Posted Thu, Sep 8, 10:15 a.m. Inappropriate
The example cited by crankyoldlady - a farmer who wanted to feed his family - has a problem. The farmer in question actually was growing more wheat than was allocated for the purpose of feeding livestock and poultry, and thereby indirectly affecting the national price of wheat that the government wanted to stabilize. And he was not alone. Many other farmers were or had the potential to carry out the same diversion and adversely affect interstate commerce. An excellent review of the problem and court decision can be found at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1268162
Posted Thu, Sep 8, 10:43 a.m. Inappropriate
The legal question boils down to which government entity, if any, can force, via individual mandate, the participation in interstate commerce. Is Romneycare constitutional for Massachusetts? Is Obamacare unconstitutional due to the fact that there are 50 state insurance commissioners and ZERO federal ones? Also, there is no severability clause in the 2700 page PPACA; first year law school stuff that could knock out the whole law. Look for SCOTUS to rule 5-4 that the law derisively known as 'Obamacare' will be struck down and kicked back to the states. Justice Kagan should recuse but she won't. We should know if she was an actice litigant on the issue before her appointment to the Supreme Court.
Posted Thu, Sep 8, 11:25 a.m. Inappropriate
From the piece:
“Almost every constitutional scholar who’s analyzed the issue has concluded that, if precedent is followed, health care reform is constitutional.”
That common belief probably says more about the dogmatism endemic in academe than anything else.
The concept of “stare decisis” certainly is important (it is a legal principle providing that judges are to respect the precedents established by prior decisions). Still, there are numerous exceptions to that rule, and prior Commerce Clause opinions are not sacrosanct.
When convinced of former error the US Supreme Court never has felt constrained to follow precedent. One study says it reversed itself in about 130 cases in the years 1946–1992:
http://www.gpoaccess.gov/constitution/html/scourt.html
The US Supreme Court should be able to ascertain in a proper manner whether Obamacare complies with the Constitution, and even if the answer is in the negative the reasons more than likely wouldn’t amount to “judicial activism”.
One reason we can trust the US Supreme Court will do the right thing is its opinions do not exhibit a regular pattern of deceit. The same can’t be said of the opinions issued by the highest court of this state. Our state’s justices regularly abuse their powers to benefit a special interest group:
http://tinyurl.com/3lp8tey
That thread shows six examples of our state’s justices ignoring meritorious claims, lying in their opinions about the legal challenges actually raised by parties before them, and providing unjustified case law to the financial beneficiaries of taxing districts. That bench engages in such abusive behavior despite the significant financial harms it causes individuals, families, and the economy here. No such pattern of dishonest conduct is evident from the opinions of the US Supreme Court.
Posted Thu, Sep 8, 3:12 p.m. Inappropriate
Give me a break. Thomas Jefferson is rolling over in his grave. This is about the inalienable rights of man versus if your life is owned by the state.
What about Christian Scientists who don't believe in health care? What about the guy 100 miles from civilization in Alaska who will die in the wild? Why would they pay for health care they don't want or use?
Posted Thu, Sep 8, 3:46 p.m. Inappropriate
judicial activism = "a court decision that I don't like"
Posted Thu, Sep 8, 6:40 p.m. Inappropriate
The 1930s were a time of dictators. Democracy was considered by many in the yammering classes as a quaint, failed experiment in nostalgia for classical times. Dictatorship was swift, streamlined, modern. FDR was simply the least successful of the charismatic dictators who overtook the democracies of the early 20th century. To cite his victories as an excuse to perpetually throw the Constitutional limitations of the national government out the window is to suggest what maybe democracy is falling out of favor again. I guess we have to fight this battle every few generations, as Jefferson suggested.
Posted Fri, Sep 9, 9:49 a.m. Inappropriate
@ dbreneman
FDR was elected with 57%, 60%, 54%, and 53% of the popular vote.
The rules of civil discourse preclude saying what I think of your rabid drivel.
Posted Tue, Sep 20, 6:45 p.m. Inappropriate
The "commerce clause" was included in the Constitution because under the original form of government,The Articles of Confederacy (NOT to be confused with the confederates of 1860),the states were free to impose trade tariffs on each other.
Historically speaking,the term "regulate" can be defined as "to make regular",so essentially speaking and within historical context,the "commerce clause" was a duty "to make trade regular" between the states-to end the tariff practice that was disturbing open commerce.
"The defect of power in the existing Confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. To the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity. To those who do not view the question through the medium of passion or of interest, the desire of the commercial States to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain. "-James Madison, Federalist, no. 42, 283--85
Essentially,if a business in Maine wanted to export something from there to Vermont,they would have to pay a trade tax to Vermont,while a landlocked state,say Tennessee,wishing to export something overseas would have to pay a tax to perhaps South Carolina to use their port.
Clearly,this caused problems.
And clearly,the Founders sought to address problems with the Confederacy when they ratified the Constitution.
So they enumerated the "commerce clause",as Madsion explained above,for reasons of making trade equitable and fair among the states by giving the power to "make regular" commerce between the state to the central government,which was really supposed to be sort of a mediator in this area.
Essentially- the "commerce clause" relative to the federal governments internal powers,is a power to mediate trade issues among the states.
The interesting thing about the individual mandate issue,is that the "commerce clause" was never intended to be a power the federal government has over the individual.
Its clearly a power over the states.
Read it.
"To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes"-Article I, Section 8, Clause 3,US Constitution
It clearly contains no directive over individuals,their private property,or the disposal or use of such private property thereof.
There was no intent that it would do so when ratified by the Founders,rather their intent is clear and concise if you understand the history behind it.
Further,at no point in the 120 to 150 or so years between ratifying the Constitution and cases like "Wickard vs. Filburn" had the "Commerce clause" ,meant anything but its historical provision.
"Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself “commercial,” in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity."
- Gonzales vs. Raich
"Jones & Laughlin Steel, Darby, and Wickard ushered in an era of Commerce Clause jurisprudence that greatly expanded the previously defined authority of Congress under that Clause."-Justice Rehnquist,States vs. Lopez
"In the wake of New Deal era Supreme Court jurisprudence it has become clear that Congress has acquired the authority to regulate private economic activity in a manner near limitless in its purview.”
- Earl M. Maltz,law professor,Rutgers
That being said,and without disparaging any particular administration in the 20th century,the Supreme Court has ruled that the "commerce clause" could be excersized over even the private property of individuals when the federal government can show a "good reason",such as "Wickard vs. Filburn",when the federal government contested that it needed such scope in authority in order to stabilize the prices of wheat.
"Wickard" was in error because first of all,the "commerce clause" grants government -as all the enumerated duties do- LIMITED authority to achieve a specific goal,in this case- "to make commerce regular".
This does not give government the power to fix the actual price of particular amenities or trade goods,only to ensure that what the states did in open commerce did not negatively affect the "regularity" of such trade.
Effectively,what "wickard" contends,is that the federal government may lay claim to private property when it affects interstate commerce,which is in error,as in order for anything to fall into scope of the federal governments power to make regular commerce among the states,it must first actually be in interstate commerce.
The most extreme error,however,is this- that the "commerce clause" contains no authority whatsoever for the government to do anything relating to the private property of the individual.
Further,to insist that excersize over private persons and private property in such a manner as to be depriving a person of his right to use his property as he sees fit, and to order people to buy products, is a constitutional and legitimate excersize of government authority, negates the very intention of the Constitution itself- that it forms a limited in scope and power central government,especially limited in that it would have no power to violate the rights of the individual,thus preserving the rights of The People from undue government intrusion.
In fact,if the federal government were to have been created to allow it to have such power,there would have been no need to clearly stipulate its duties in the first place; the Founders could have simply written the Constitution to include unlimited powers of interference for the new federal government in the private affairs of the People,which in effect would have created the very sort of government that they (the Founders) fought a revolution to be rid of.
To address the error of the Supreme Court in "Wickard",it is necessary that the SCOTUS finds the 'individual mandate' invalid,which could possibly induce further challenges to the expansion of government powers under the "commerce clause".
Thus,the issue of "obamacare" reaches not only the actual effect in question; that of government being able to actively coerce participation in commerce,but the very heart and soul of our nation.
Should we have a government that can tax and regulate all things,"right" all "wrongs",and act in all aspects of our lives from what we do with our property to what we purchase- or should we have a government limited by law to certain enumerated duties so that the rights of free people to make choices and either benefit from or suffer the consequences of their own decisions be preserved.
Liberty is not about having a government that influences all aspects of our lives in order that the vision of those who feel their ideology and concepts are "whats right" gets imposed on the rest of everyone else.
Its about having the right to choose- even when that decision might have negative consequences.
Our Founders knew this,and ratified the Constitution to form a limited by law government.
Those who seek to expand the powers of the federal government for whatever reason- "to suit modern times",or to impose "responsibility" and their vision of "fairness" on the rest of the nation by abusing the courts and manipulating the Constitution can realistically only go so far until they manage to contradict the very reasoning and intent of the Constitution itself.
To that end,it becomes ever more clear to more and more people that this is exactly the issue at hand.
Posted Tue, Sep 20, 6:52 p.m. Inappropriate
(continued)
order people to buy products, is a constitutional and legitimate excersize of government authority, negates the very intention of the Constitution itself- that it forms a limited in scope and power central government,especially limited in that it would have no power to violate the rights of the individual,thus preserving the rights of The People from undue government intrusion.
In fact,if the federal government were to have been created to allow it to have such power,there would have been no need to clearly stipulate its duties in the first place; the Founders could have simply written the Constitution to include unlimited powers of interference for the new federal government in the private affairs of the People,which in effect would have created the very sort of government that they (the Founders) fought a revolution to be rid of.
To address the error of the Supreme Court in "Wickard",it is necessary that the SCOTUS finds the 'individual mandate' invalid,which could possibly induce further challenges to the expansion of government powers under the "commerce clause" during the "New Deal" "progressive" era.
It is wholly unlawful for the federal government to achieve for itself undelegated authority and expansions of authority not specifically given it by the Constitution without the Constitution itself being properly amended.
Court interpretations are not legitimate avenues of changing the Constitution.Period.
The Courts job is to APPLY and OBEY the Constitution,not "interpret" it to whatever whim it feels suits the positions of the time.
Thus,the issue of "obamacare" reaches not only the actual effect in question; that of government being able to actively coerce participation in commerce,but the very heart and soul of our nation.
Should we have a government that can tax and regulate all things,"right" all "wrongs",and act in all aspects of our lives from what we do with our property to what we purchase- or should we have a government limited by law to certain enumerated duties so that the rights of free people to make choices and either benefit from or suffer the consequences of their own decisions be preserved.
Liberty is not about having a government that influences all aspects of our lives in order that the vision of those who feel their ideology and concepts are "whats right" gets imposed on the rest of everyone else.
Its about having the right to choose- even when that decision might have negative consequences.
Our Founders knew this,and ratified the Constitution to form a limited by law government.
Those who seek to expand the powers of the federal government for whatever reason- "to suit modern times",or to impose "responsibility" and their vision of "fairness" on the rest of the nation by abusing the courts and manipulating the Constitution can realistically only go so far until they manage to contradict the very meaning and intent of the Constitution itself,as in this case,where clearly a duty to make trade regular among the states,an authority over the states and a limited one in light of its object,has been stretched,over time and with great effort, to the point where it is practically unrecognizable as even being limited in its scope- as it now has adherents believing it gives government the power to lawfully coerce participation in commerce,despite its plain wording and intent not granting one iota of such authority.
The "judicial activism",in this instance,is I daresay- on the side of the proponents of "Obamacare".
To that end,it becomes ever more clear to more and more people that this is exactly the issue at hand- that there are in fact those people who believe that the government should be able to coerce their fellow citizen into objects that they believe benefit society,against their fellow citizens will,and against their fellow citizens inalienable rights.
There is a serious rift between the people of this nation fostered by this difference of opinion,such that we can said to be "highly polarized" and even "two separate nations".
But of the two opinions,only ONE is correct.Only ONE has the legitimacy of history to back it up,and of the other side,they continue to be a true burden on the rights of their fellow citizen in their unending attempts at reforming the nation to their whim.
"Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government."
-James Madison
“That we may form a correct judgment on this subject, it will be proper to review the several powers conferred on the government of the Union; and that this may be more conveniently done they may be reduced into the different classes as they relate to the following different objects: 1. Security against foreign danger; 2. Regulation of intercourse with foreign nations; 3. Maintenance of harmony and proper intercourse among the States; 4. Certain miscellaneous objects of general utility; 5. Restraint of the States from certain injurious acts; 6. Provisions for giving due efficacy to all these powers.”-James Madison,Federalist Essay No. 41
"This Constitution, as to the powers therein granted, is constantly to be the supreme law of the land. Every power ceded by it must be executed without being counteracted by the laws or constitutions of the individual states. Gentlemen should distinguish that it is not the supreme law in the exercise of power not granted. It can be supreme only in cases consistent with the powers specially granted, and not in usurpations..."-William Davie, a delegate to the Constitutional Convention from North Carolina
"The capital and leading object of the Constitution was to leave with the States all authorities which respected their own citizens only, and to transfer to the United States those which respected citizens of foreign or other States; to make us several [separate] as to ourselves, but one as to all others."
-Thomas Jefferson, Letter to William Johnson, 1823
"......that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force....."
-Thomas Jefferson,Kentucky Resolutions of 1798
Login or register to add your voice to the conversation.