{"id":9438,"date":"2010-01-07T11:44:01","date_gmt":"2010-01-07T18:44:01","guid":{"rendered":"http:\/\/www.amptoons.com\/blog\/?p=9438"},"modified":"2010-01-07T11:44:01","modified_gmt":"2010-01-07T18:44:01","slug":"yes-health-care-is-constitutional","status":"publish","type":"post","link":"https:\/\/amptoons.com\/blog\/?p=9438","title":{"rendered":"Yes, Health Care Is Constitutional."},"content":{"rendered":"

In an open thread<\/a>, Ron and Rob discuss the prospect of a Constitutional challenge to health care reform, and in particular to the individual mandate:<\/p>\n

Ron:<\/em> Anybody have any idea how this might turn out? I\u2019m trying to think of anything else the government forces me to buy. I have to buy car insurance if I buy a car, but then I don\u2019t have to buy a car and if I don\u2019t I don\u2019t have to buy car insurance. I\u2019m trying to think of anything that the government forces me to buy purely for the privilege of living in the U.S. and I\u2019m coming up short. […]<\/p>\n

Robert:<\/em> As for how the court challenge will go – I\u2019m inclined to think the courts will be fairly sympathetic to the individuals not wanting to make the payments. The other side\u2019s interest amounts to \u201cWe really really want health care reform and making people buy insurance is the only way we could find to make the political deal work\u201d. That\u2019s good enough for legislation, but not good enough to override people\u2019s rights.<\/p><\/blockquote>\n

Of course, the government isn’t going to force RonF to buy anything. My possibly mistaken recollection is that Ron has a job that includes health benefits; if so, the individual mandate wouldn’t apply to Ron. But if it did apply to Ron, Ron still wouldn’t be forced to buy health insurance; he could always elect to pay a tax instead.<\/p>\n

The constitutional arguments about the individual mandate hinge on two questions: whether or not Congress has the authority to create an individual mandate as part of health care reform, and whether or not Congress has the authority to tax individuals in this way. In both cases, the answer seems to be yes.<\/p>\n

Conservatives have argued that the commerce clause doesn’t give Congress the power to mandate individual’s personal decisions. Jonathan Adler, writing at the conservative legal blog Volokh Conspiracy<\/a>, writes:<\/p>\n

As much as I oppose the various health care reforms promoted by the Obama Administration and current Congressional leadership (and as much as I would like to see a more restrictive commerce clause jurisprudence), I do not find this argument particularly convincing. While I agree that the recent commerce clause cases hold that Congress may not regulate noneconomic activity, as such, they also state that Congress may reach otherwise unregulable conduct as part of an overarching regulatory scheme, where the regulation of such conduct is necessary and proper to the success of such scheme. In this case, the overall scheme would involve the regulation of “commerce” as the Supreme Court has defined it for several decades, as it would involve the regulation of health care markets. And the success of such a regulatory scheme would depend upon requiring all to participate. (Among other things, if health care reform requires insurers to issue insurance to all comers, and prohibits refusals for pre-existing conditions, then a mandate is necessary to prevent opportunistic behavior by individuals who simply wait to purchase insurance until they get sick.) <\/p><\/blockquote>\n

Congress’ power to tax individuals is extremely well-established.<\/p>\n

For further reading, see Michael Dorf’s articles at FindLaw (part 1<\/a>, part 2<\/a>); this statement from Max Baucus<\/a>; Jack Balkin on taxing authority<\/a>; the general discussion at Volokh<\/a>; and especially this debate between David B. Rivkin & Lee A. Casey, and Jack Balkin<\/a>.<\/p>\n

But what about the Supreme Court — couldn’t they decide health care reform is unconstitutional? Remember Bush v. Gore<\/em><\/a> — it’s within the Supreme Court’s power to make transparently partisan and unprincipled decisions.<\/p>\n

Yes, the Court could overturn health care reform. But they probably won’t. At Volokh<\/a>, conservative legal scholar Ilya Somin writes:<\/p>\n

Current Supreme Court precedent allows Congress regulate virtually anything that has even a remote connection to interstate commerce, so long as it has a “substantial effect” on it. The most recent major precedent in this field is Gonzales v. Raich<\/a><\/em>, where the Court held that Congress’ power to regulate interstate commerce was broad enough to uphold a ban on the use of medical marijuana that was never sold in any market and never left the confines of the state where it was grown. This regulation was upheld under the “substantial effects” rule noted above. As I describe in great detail in this article<\/a>, Raich <\/em>renders Congress’ power under the substantial effects test virtually unlimited in three different ways:<\/p>\n

1. Raich <\/em>holds that Congress can regulate virtually any “economic activity,” and adopts an extraordinarily broad definition of “economic,” which according to the Court of encompasses anything that involves the “production, distribution, and consumption of commodities.”<\/p>\n

2. Raich <\/em>makes it easy for Congress to impose controls on even “non-economic” activity by claiming that it is part of a broader regulatory scheme aimed at something economic.<\/p>\n

3. Raich <\/em>adopts so-called “rational basis” test as the standard for Commerce Clause cases, holding that “[w]e need not determine whether [the] activities [being regulated], taken in the aggregate, substantially affect interstate commerce in fact, but only whether a rational basis exists for so concluding.” In legal jargon, a “rational basis” can be almost any non-completely moronic reason for believing that a particular claim might be true.<\/p>\n

Any of these three holdings could easily justify a federal requirement forcing people to purchase health insurance.[…]<\/p>\n

…it is highly unlikely that the Supreme Court would invalidate a major provision of the health care bill, should it pass Congress. In addition to requiring the overruling of Raich <\/em>and considerable revision of other precedents, such a decision would lead to a major confrontation with Congress and the president. The Court is unlikely to pick a massive fight with a still-popular president backed by a large congressional majority. Of course, it is still possible that the Court could invalidate some minor portion of the bill on Commerce Clause grounds. But even that is unlikely so long as the majority of justices remain committed to Raich<\/em>. Five of the six justices who voted with the majority in that case are still on the Court. The only exception – Justice David Souter – has been replaced by a liberal justice who is unlikely to be any more willing to impose meaningful limits on congressional power than Souter was.<\/p><\/blockquote>\n

Even if you don’t buy that the Court would be unwilling to pick a major fight with the other two branches — or even if you don’t buy that Obama is still popular, or that Democrats will continue to hold a significant majority in Congress ((And by the way, if you’d like to discuss these questions, please take them to an open thread.)) — it’s still unlikely that a Court with five justices who voted for Raich<\/em> plus Sotomeyor, will overturn Raich<\/em>.<\/p>\n","protected":false},"excerpt":{"rendered":"

In an open thread, Ron and Rob discuss the prospect of a Constitutional challenge to health care reform, and in particular to the individual mandate: Ron: Anybody have any idea how this might turn out? I\u2019m trying to think of … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[36,111],"tags":[],"class_list":["post-9438","post","type-post","status-publish","format-standard","hentry","category-health-care-and-related-issues","category-supreme-court-issues"],"_links":{"self":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/posts\/9438","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=9438"}],"version-history":[{"count":0,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/posts\/9438\/revisions"}],"wp:attachment":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=9438"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=9438"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=9438"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}