03.22.10

Can They Kill Health Care in Court?

With the bill passed, conservatives are now plotting a legal challenge. Constitutional law professor Adam Winkler on what the Republicans are going to argue and why they might win.

After months of contentious debate, the House narrowly passed landmark health-care legislation on Sunday. But the war over health care is hardly over. Republican attorneys general of several states have announced they will challenge Obamacare in court. The law, they say, is unconstitutional.

The argument against the health-care bill focuses on the so-called individual mandate. This is the part of the bill that tries to push everyone into the health- insurance market, including young, healthy people who otherwise might go uninsured. The idea is to reduce the total cost of health care by including everyone in the insurance pool.

Health-care opponents’ arguments against the law are without merit. But that doesn’t mean those arguments won’t be successful in the Supreme Court.

More Daily Beast writers weigh in on Obama’s health-care win Opponents claim that Congress has no authority to require people to buy insurance. In an op-ed in The Washington Post, Georgetown law professor Randy Barnett argues that the law is “unprecedented” because it forces individuals to “engage in an economic transaction with a private company.” The crux of the argument is that the individual mandate exceeds Congress’s constitutional authority “to regulate commerce... among the several states.” The power to regulate interstate commerce is one of the most important powers of Congress and is the basis for most federal laws, including Medicare, Social Security, drug laws, civil-rights laws, and others. Since the 1930s, the Supreme Court has said that Congress’s commerce power is very broad and can be used to justify regulation of nearly any activity that substantially impacts interstate commerce.

Mandating individuals to purchase health insurance, opponents claim, isn’t a regulation of economic activity. According to Virginia Attorney General Ken Cuccinelli, “We contend that if a person decides not to buy health insurance, that person—by definition—is not engaging in commerce and, therefore, is not subject to a federal mandate.”

Yet people who fail to buy health insurance are engaging in economic activity. They are making an economic decision to self-insure. If they fall ill, they usually find that they can’t afford medical care and visit an emergency room. Or they go without care, allow their condition to worsen, and then get taken to an emergency room. In either case, the American people foot the bill. The national economic consequences of individuals deciding to go without insurance are enormous.

Even if self-insuring could be construed as non-economic activity, the individual mandate is still within Congress’s commerce power. The High Court has held on numerous occasions that Congress can regulate non-economic activity as part of a larger, comprehensive effort to regulate some aspect of our national economy. Just a few years ago, the Supreme Court held that Congress, as part of its effort to stamp out interstate commerce in illegal drugs, could prohibit a person from growing marijuana in his own home for his own use. The court has also said that Congress, as part of regulation of wheat prices, can limit the amount of wheat a farmer grows on his own land for his personal use.

With health care, controlling precedent seems to clearly allow Congress, as part of its comprehensive effort to regulate the interstate health-care market, to require individuals to have insurance coverage. Even if the decision to go without insurance is not economic activity, Congress can reach it because health care profoundly affects interstate commerce.

Yet there is a more serious flaw in the commerce power argument of health care’s opponents. Congress can justify the mandate on a different power entirely: the taxing power. The individual mandate, after all, is a tax provision. It doesn’t really require individuals to purchase insurance; no one is thrown in jail simply for going uninsured. If people fail to buy insurance, they are hit with a tax. Someone dead-set against buying insurance can choose to remain without coverage and pay the tax. Such a choice is not exactly “free.” A person’s decision to smoke isn’t free either. Thanks to taxes, the choice is pretty expensive.

Because the individual mandate is a tax provision that promotes the general welfare, it is within Congress’ taxing power. This is one of broadest grants of authority the Constitution gives Congress. For decades, the Supreme Court has said that Congress can impose any tax reasonably designed to promote the public good. So long as a reasonable lawmaker could believe the general welfare is served by expanding the pool of covered individuals, reducing dependence on emergency rooms, and lowering the total costs of health care, then the individual mandate tax is constitutional.

Still, opponents say, Congress can’t penalize someone for doing nothing. Sure it can. And it does every year. If you don’t believe me, just “do nothing” this April 15 when your tax bill is due. With a handful of exceptions, all individuals are required to file a tax return with the Internal Revenue Service and if you choose instead to do nothing you will be penalized for it. If Congress can penalize you for failing to file a tax return, it can penalize you for failing to have health insurance.

Are opponents correct that Congress has never before required large numbers of people to purchase something? No. In fact, the Founding Fathers themselves included an “individual mandate” in a law way back in 1792. The Militia Acts were a series of bills that first organized state militias in America’s early years that required “free able-bodied” men to serve with their own gun. It didn’t matter to the Founding Fathers if someone preferred to spend his money elsewhere. He was required to have a gun, even if that gun had to be purchased from a private seller.

People often assume the Founders thought Congress’s powers were very narrow. But even they thought it was acceptable to impose an individual mandate to buy something on a large number of citizens when necessary for the public welfare. If Congress’s power over state militias could justify an individual mandate to buy something, so would Congress’s power over interstate commerce or over taxes.

Even some legal conservatives admit that the arguments against the bill are very weak. Given these strong precedents, why would anyone believe the Supreme Court would still invalidate the individual mandate? Because in politically divisive cases, the courts are rarely shy about breaking from precedent. This is especially so when the justices don’t agree politically with the results that case law would seem to require.

In the 1800s, a conservative Supreme Court struck down the Missouri Compromise, a federal law that restricted the spread of slavery into western territories. Although the Constitution clearly gives Congress power to regulate federal territories, the Dred Scott Court essentially ignored this grant of authority. The justices thought that new territories had the right to choose for themselves whether to be slave or free—and sought to issue a ruling that would end the divisiveness occasioned by slavery. It didn’t quite work out the way they were hoping.

Liberals do it too. In the 1950s, a liberal Supreme Court broke from 70 years of precedent to strike down “separate but equal” in public education. It hardly mattered that those who added the equality guarantee to the Constitution favored racial segregation in schools—or that the court had repeatedly upheld Jim Crow segregation laws.

But we don’t have to go so far back in time to find examples. Earlier this year, the Roberts Court invalidated a campaign-finance law that banned corporations from spending shareholders’ money to influence federal elections. Such laws have been a prominent feature of campaign-finance law for over a century. The court itself had upheld corporate political spending restrictions in candidate elections, the very provision upheld less than a decade ago by the Rehnquist Court.

In cases from abortion rights to affirmative action, the Roberts Court has already shown itself to be one of the most activist courts in recent memory. The court’s conservatives aren’t any more likely to support President Obama’s health-care agenda than the conservatives in Congress. Justice Anthony Kennedy, the swing vote on the court, is known to be a libertarian who probably won’t find much to like in the individual mandate.

Health-care opponents’ arguments against the law are without merit. But that doesn’t mean those arguments won’t be successful in the Supreme Court.

Adam Winkler is a constitutional law professor at UCLA.