Apparently, there is some question about the legality of the bill recently (as in yesterday) signed into law by President Obama.  I’ve already discussed the questionable procedures used to pass it in the House.  But what about

the bill itself?  Is it legal?  Is it constitutional?

Let me just say at the outset that rational minds can disagree, and this topic is no exception.  I hope merely to provide some short review of the differing sides of this discussion, and hopefully you can come to your own conclusions without falling back on your pre-conceived partisan inclinations (yes, we all have biases, even if we don’t recognize them).

On the one side of the discussion, there are those that believe that the health care reform bill is unconstitutional.  Their arguments boil down into several points and discussed in two lawsuits contesting the bill, one by the state of Virginia and the other by  Florida and, in the words of Josh Blackmun, “a bunch of other states.”

Virginia and the Commerce Clause complaint

The Virginia case attacks the health care bill on “commerce clause” grounds.   The commerce clause, found in Art. 1, Sec. 8, Clause 3 of the Constitution, gives Congress the power to “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes[.]”  Historically, the commerce clause has been one of the most empowering in the Constitution and the means through which Congress passes a large portion of legislation every year because it allows Congress to regulate anything that passes through the stream of commerce.  However, as Randy Barnett, professor of constitutional law at Georgetown University, very aptly points out, insurance contracts have not before now been considered as affecting interstate commerce:

[...] 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.

If we have to buy insurance for our car, why not for our health?

Josh Blackman points this out, too, citing directly from the Virginia complaint:

Paragraph 17:  ”The status of being a citizen of Virginia is not a channel of interstate commerce; nor a person or thing in interstate commerce; nor is it an activity arising out of or connected with a commercial transaction. Instead, the status arises from an absence of commerce, not from some sort of economic endeavor, and it is not even a non-economic activity affecting interstate commerce. It is entirely passive.”

Paragraph 18:  The Commerce Clause authority has never been held to “require citizens to buy goods or services. To depart from that history to permit the national government to require the purchase of goods or services would deprive the Commerce Clause of any effective limits contrary to Lopez and Morrison and would create powers indistinguishable from a general police power in total derogation of our constitutional scheme of enumerated powers.”

Paragraph 19: “Requiring citizen-to-citizen subsidy or redistribution is contrary to the foundational assumptions of the constitutional compact [under the Necessary and Proper Clause].”

In closing, the Virginia complaint dismisses the bill with rhetorical flair:

“because the individual mandate exceeds the enumerated powers conferred upon Congress. Because the individual mandate is an essential, non-severable provision, the entire act is likewise invalid.”

Florida and the “bunch of other states” everything-but-the-kitchen-sink complaint

Florida is joined in its complaint by South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Colorado, Michigan, Pennsylvania, Washington, Idaho, and South Dakota.  Other than a short mention of the commerce clause

, the complaint challenges the bill through the 10th Amendment, the Capitation Clause, the Guarantee Clause , general principles of federalism (commandeering) and state sovereignty.   In pertinent part, and again a nod to Blackman, some of the highlight from the complaint are these:

2. The Act represents an unprecedented encroachment on the liberty of individuals living in the Plaintiffs’ respective states, by mandating that all citizens and legal residents of the United States have qualifying healthcare coverage or pay a tax penalty. The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying healthcare coverage. By imposing such a mandate, the Act exceeds the powers of the United States under Article I of the Constitution and violates the Tenth Amendment to the Constitution.

3. In addition, the tax penalty required under the Act, which must be paid by uninsured citizens and residents, constitutes an unlawful capitation or direct tax, in violation of Article I, sections 2 and 9 of the Constitution of the United States.

4. The Act also represents an unprecedented encroachment on the sovereignty of the states.

5. Further, the Act converts what had been a voluntary federal-state partnership into a compulsory top-down federal program in which the discretion of the Plaintiffs and their sister states is removed, in derogation of the core constitutional principle of federalism upon which this Nation was founded. In so doing, the Act exceeds the powers of the United States and violates the Tenth Amendment to the Constitution.

56. The Act exceeds Congress’s powers under Article I of the Constitution of the United States, and cannot be upheld under the Commerce Clause, Const. art. I, §8; the Taxing and Spending Clause, id.; or any other provision of the Constitution.

57. By effectively co-opting the Plaintiffs’ control over their budgetary processes and legislative agendas through compelling them to assume costs they cannot afford, and by requiring them to establish health insurance exchanges, the Act deprives them of their sovereignty and their right to a republican form of government, in violation of Article IV, section 4 of the Constitution of the United States.

58. The Act violates the Tenth Amendment of the Constitution of the United States, and runs afoul of the Constitution’s principle of federalism, by commandeering the Plaintiffs and their employees as agents of the federal government’s regulatory scheme at the states’ own cost.

Are the criticisms legitimate?

Just because a lot of conservative states have filed suit does not necessarily mean that the criticisms are legitimate.  Jack Balkin, a Yale constitutional professor, dismissed the legal challenges presented to the health care bill.  Since the 1930s, Congress has had almost unfettered authority to regulate the economy, and as long as the individual mandate is framed as a tax, Congress may be well within its rights to require it:

“The attack on this bill,” said Jack M. Balkin,“is not merely an attack on the substance of this particular measure. It’s also a challenge to understandings that come with the New Deal.”

Replying to the proposition that people have a right not to buy health insurance, Erwin Chemerinsky, a constitutional scholar and dean of the University of California, Irvine School of Law speaking to the New York Times:

[S]aid the right not to buy health care was “rhetorically appealing” because of its paean to personal freedom. But “individual freedom not to purchase health care, I think, has no basis in Constitutional law.

In fact, Professor Chemerinsky added, “there is no case law, post 1937, that would support an individual’s right not to buy health care if the government wants to mandate it.”

Congress has often taken actions that impinge on personal freedom for a national purpose, he noted, including the Civil Rights Act of 1964, which required hotels and restaurants to serve minorities.

“If the court stays true to its Commerce Clause jurisprudence of the last 15 years,” Professor Chemerinsky said, “I think this will be upheld.”

Vote Counting on the Supreme Court

Ironically, it is this very point–that it doesn’t really matter how close the legislation adheres to the Constitution that will allow it to survive legal challenges but whether it can be upheld on judicial precedent of the last eighty years–that Bartlett notes will be the ultimate determinate of its legality.  When it comes to the legal challenge, Bartlett says

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?

What the Constitution says, what the Supreme Court has said, and what will five justices accept are not necessarily the same thing, and it is this last factor that draws the ire of the political left.  Regarding the lawsuits filed by Virginia and Florida (et al.), the Economist View had this to say:

From what I’ve read, there are two points to make. First, it would be crazy to rule that the individual mandate (or any other component of the legislation) is unconstitutional. Second, we have four crazy justices on the Supreme Court.

Start counting the votes now.  It may come down to just one swing justice, and that’s a vote that neither side can presume.

Related articles

• Commerce Clause argument in Virginia v. Sebelius, amongst others (lawafterthebar.wordpress.com)
• SCOTUS Sending A Signal On The Commerce Clause And ObamaCare? (outsidethebeltway.com)
• U.S. Appeals Ruling Striking Down Obama’s Health Law (businessweek.com)
• Virginia’s Health Care Reform Lawsuit Goes Forward: What’s Behind Judge’s Ruling (dailyfinance.com)
• U.S. appeals Virginia judge’s ruling challenging health care law (nj.com)