02.28.2010 0

Too Hot Not toNote: Is health reform unconstitutional? Don’t laugh.

  • On: 03/26/2010 09:49:53
  • In: Health Care
  • ALG Editor’s Note: In the following featured commentary from the Washington Post, Charles Lane calls into question the constitutionality of ObamaCare’s individual mandate to purchase insurance:

    Is health reform unconstitutional? Don’t laugh.

    By Charles Lane

    President Obama’s signature is barely dry on the health-care bill, but already the legal challenges have begun. Most of them strike me as pretty implausible, with one exception: the complaint that Congress lacks the authority to impose an individual mandate to buy health insurance. To be sure, this claim, too, is a long shot, for reasons that Orin Kerr has articulated pretty well. But let me explain why I don’t think it’s a total laugher.

    Congress can regulate activity pursuant to its constitutional power over commerce “among the several states.” The Supreme Court has struck down relatively few statutes as exceeding this authority. Not only that: The court has upheld such sweeping laws as federal limits on subsistence wheat farming and a federal ban on marijuana possession in states that allow “medical marijuana.” Basically, the court has found that even apparently localized activities have repercussions for national markets.

    In recent years, however, the court has also struck down federal laws banning handguns within 1,000 feet of a school and permitting women to sue rapists in federal court. In those cases, the court attempted to set an outer limit on Congress’s Commerce Clause authority, warning that Congress cannot touch non-economic activities, or claim economic impacts that require “inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.”

    Given that recent history, will the Supreme Court will simply duck this question out of deference to Congress — as a number of pundits are predicting? True, federal statutes enjoy a presumption of constitutionality and, under normal circumstances, there has to be some disagreement among lower courts before the Supremes intervene. But we’re talking about a court whose conservative majority just overturned a bipartisan campaign finance law, conferring free-speech rights on corporations for the first time. And, not too long before that, a different, liberal-led, majority of the same court struck down military tribunals that a broad bipartisan majority of Congress had created.

    By contrast, health care passed with a narrow, partisan majority, and its popularity at the moment is at best unclear — not that such considerations would ever penetrate the justices’ ivory tower, of course! During the election dispute of 2000, the legal professoriate chorused in near-perfect unison that the Supreme Court would never hear Bush v. Gore, and wouldn’t rule in favor of Bush if it did. We all know what happened to those predictions.

    On the merits of the issue, I agree with health reform’s supporters that one’s decision not to buy health insurance has economic ripple effects. Basically, it turns you into a free-rider and that imposes costs on everyone else in the risk pool. As Prof. Erwin Chemerinsky recently put it: “There is no constitutionally protected freedom to be able to refuse to be insured or to avoid paying for the benefits provided.”

    I’m less convinced, however, that eschewing insurance amounts to economic “activity.” The opponents have a point when they ask, “If Washington can require you to buy this product, what can’t it require you to buy/do?” (This was not an issue for Massachusetts’s individual mandate, by the way, because that was a state program and there has never been a question about an individual state’s authority to set such requirements.) Yes, being a free-rider may affect everyone else’s costs, but even if you shun insurance, you still have to pay for the services you use, at least if you’re non-indigent.

    For many people, non-participation in the health-care risk pool is economically rational, and participation is not. For others, refusing health insurance might be a “statement” of sorts. There are a few Americans who want as little contact as possible with authority or the wider society. They prefer to live “off the grid.”

    In other contexts, we applaud the exercise of the “right to be left alone.” Indeed, radical individualism, or, to be more precise, the possibility of radical individualism, is part of what’s always been different and, to many people, kinda special about America. As a practical matter, the scope for this kind of life has been diminishing for some time. The individual mandate limits it even more, in favor of social solidarity.

    This may be a necessary change — the price of living in a modern, urbanized society in which medical care has become both pervasive and expensive, far more pervasive and expensive than the framers of the Constitution, or the original Medicare statute, for that matter, ever imagined. The individual mandate may well be constitutional; the arguments in favor are indeed powerful. But it raises non-trivial issues of federal authority over the individual.

    I would not be surprised if the Supreme Court wants to weigh in before it takes effect in 2014.

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