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 'êa 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.
'êThe power of the (attorneys general's) argument," Sack wrote, 'êlies in questioning whether Congress can regulate inactivity — in this case by levying a tax penalty on those who do not obtain health insurance. If so, they ask, what would theoretically prevent the government from mandating all manner of acts in the national interest, say regular exercise or buying an American car?"
The court has said that the commerce clause can embrace "activities that substantially affect interstate commerce." Its commerce clause rulings have always covered activities, rather than failures to act.
Sack made it clear that plenty of experts thought the case was indeed a slam-dunk for the Obama administration. Nevertheless, he wrote:
Jonathan Turley, who teaches at George Washington University Law School, said that if forced to bet, he would predict that the courts would uphold the health care law. But Mr. Turley said that the federal government's case was far from open-and-shut, and that he found the arguments against the mandate compelling.
"There are few cases in the history of the court system that have a more significant assertion of authority by the government," said Mr. Turley, a civil libertarian who acknowledged being strange bedfellows with the conservative theorists behind the lawsuit. "This case, more than any other, may give the court sticker shock in terms of its impact on federalism."
A couple of days after the Times article ran, I asked McKenna if it was the first major media piece that took the constitutional issue seriously. He said that except for a Wall Street Journal op-ed column by a Georgetown law professor, it probably was.
McKenna argued that Chief Justice John Roberts' court just might be willing to turn its back on the New Deal, or at least to distinguish individual mandates from all the other things that the commerce clause had been used to justify over the years.
It isn't 1942 any more. "The expansion of the commerce clause sort of reached its apotheosis" with Wickard v Filburn, McKenna says. "I've told audiences of lawyers that decision was handed down in the middle of World War II, at a time of federal command and control of the economy. It was a case of its era." In a new century, he thinks, it "could easily be distinguished or even overruled."
Washington Attorney General's Office
He notes that the court — the William Rehnquist court — made the first little break with the past, in its 1995 Lopez decision, ruling that Congress couldn't make it a federal crime to pack heat within 1,000 feet of a school. For the first time since FDR's second term, Congress said "commerce clause," and the court didn't automatically say "okay." The court followed up in Morrison by ruling that Congress couldn't use the clause to let a woman bring civil charges against her alleged rapist. So there are precedents for abandoning the uncritical acceptance of commerce clause rationales. Kind of; those cases may have established a principle, but they hardly started a trend.
McKenna concedes that five years ago in Raich, Justice Antonin Scalia concurred with the majority ruling that the commerce clause enabled Congress to seize marijuana plants being grown legally — allegedly for medical purposes — under California law. (Talk about strange bedfellows: Scalia concurred in the majority opinion written by John Paul Stevens, while Clarence Thomas joined Sandra Day O'Connor's dissent.) But pot-growing is activity, not inactivity, McKenna notes, and besides, marijuana is clearly traded in interstate commerce.
Scalia is notoriously consistent 'ê which, McKenna says, was to his own advantage when he argued the R-71 case recently before the Court 'ê but McKenna thinks he could easily distinguish the healthcare case from Raich. (McKenna was, of course, arguing that the state should be able to make public the names of people who sign an initiative petition. During oral argument, Scalia implicitly supported his position and suggested anonymity was a cover for political cowardice — see: Klan, Ku Klux — saying that "running a democracy takes a certain amount of civic courage.")
Some people worry that if the AGs prevail, the whole (disgracefully) massive healthcare statute will come crashing down. McKenna doesn't believe it. "Do you really think that the Department of Justice isn't going to argue severability?" he asks (in other words, even if one or more provisions are tossed, the rest should be allowed to stand). "They're going to argue severability to their last breath."
And he figures they'd probably win. But that begs a crucial question: Don't you need the individual mandate — or some equivalent — to make the system work actuarially? "Insurance companies are right to be concerned" about the numbers, he says. But "that doesn't solve the constitutional defect; it just underlines the policy challenge."
Besides, he says, even if the individual mandate survives, there will be "a lot of people who still don't have insurance." The law carves out plenty of exemptions. In addition, he foresees "a lot of people who'll do the math and figure out it'll be a lot cheaper to pay the penalty than to buy insurance they don't think they need."
I know people who feel the Obama health insurance reform doesn't go far enough, and hope that if the individual mandate goes down in flames, Congress will substitute a truly universal single-payer system. Single-payer would certainly be one alternative. Unfortunately, it wouldn't be the only one.
A single-payer system would probably be constitutional, McKenna says, but the experience of countries that already have single-payer systems suggests it wouldn't slow the rise of medical costs. "Health care inflation is driven by lack of pricing transparency and the basic tragedy of the commons," McKenna argues. "We ought to be on the Mayo Clinic model or the Group Health model in the whole country."