Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Tuesday, March 23, 2010

The Constitutionality of Health Care Reform (HCR)

So, Virginia and 12 other states have filed suit against HCR, specifically against the "individual mandate" that will not kick in until 2014. Obviously it's not really a lawsuit to declare HCR unconstitutional. It would leave in place all of the regulation, subsidies, and employer mandates - it would only seek to overturn the individual mandate.

If the court decided against it, there are easy patches. First,remember: people want health insurance. If the subsidies are good enough, compliance should be pretty high with or without a mandate. Big deal. Second, taxes are constitutional. The individual mandate could be transformed into an add-on to the income tax where the payee is the government, not private insurance companies. If it is unconstitutional to require every citizen to pay $1000 to General Insurance, it is not unconsttitutional to require every citizen to pay $1000 in taxes (and be offered a free a General insurance policy).

Stop avoiding the question. Is it constitutional? This is not so easy a call as you might think. There are two modes of attack. The first is that it is an impermissible intrusion on liberty, which would (under the 14th amendment) be the same analysis for states as for the feds. Nobody has levied this attack against Massachussetts, for example, which has an individual mandate. It probably would fail. Most obviously, if viewed as a kind of tax, then it's fine. And it is very much like a head tax, although that's not the Democrats' favorite argument. Are Medicare or Social Security unconstitutional? Both require expenditures by all for specific items. The individual mandate could be re-case easily enough. Remember, it is only a mandate to spend money.

The second main attack is that the mandate is a violation of the commerce clause of the federal constitution, intruding on an area subject solely to state regulation. The latter appears to be the premise of the lawsuits. Note that this is not an objection to the individual mandate as a violation of some supposed fundamental American liberty (the Tea Party line) but is a purely federalist argument. The response of the courts will probably be that this is within the commerce clause. Why? The courts will likely find that the feds can do this regulation precisely because state regulation isn't effective in dealing with this insurance market. If state regulation isn't effective - if national regulation is needed - that all but proves that what we are dealing with is an INTERSTATE commerce issue. Compare the Lopez case of 1996 where the Supreme Court invoked the "dormant" commerce clause limits to strike down a federal ban on guns within 1000 feet of schools. Clearly, state laws would be equally effective to accomplish the same goal within each state's borders.


bell curve said...

I could easily see the $750 fine on individuals who don't buy insurance re-cast as a $750 tax on everyone but which is waived for people with health insurance.

Raised By Republicans said...

Great post! I was hoping you would weigh in on this.

I'm also sure that many Republicans think that Medicare and Social Security are unconstitutional.

Anonymous said...

Government out of my Medicare! Sorry, it's just so funny a phrase I have to say it from time to time. I'm reasonably confident the health care reform bill will survive these challenges.

-Seventh Sister

The Law Talking Guy said...

But [the] Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.

Justice Oliver Wendell Holmes (1905).

Raised By Republicans said...

I agree, LTG.

The problem is most Republicans and conservatives I've spoken with don't agree. They fervently believe that the Constitution - as the founders intended it - was meant to guarantee a fiscally and religiously conservative state. I believe just as fervently that they have a gross misunderstanding of what the founders intended let alone what the role of a constitution is. But it is still important to understand where these people are coming from.

What I fear is that they have at least 3 members and possibly 5 of the Supreme Court that agree with them.

The Law Talking Guy said...

I hate to be a bit of a pedant, but it's not all that important what people believe about the constitution. Constitutional doctrine is a matter of law and is for expert interpretation, not individual faith. If you poll legal scholars, even conservative ones, you find that the tiny minority who consider the individual mandate unconstitutional have a radically different view of the constitution from even mainstream conservatives on the bench and at bar. In other words, 95% of the people do the same math that I do: the other 5 percent were starting with the principle that 2+2=5, which is why they end up with a different result.

I guess what I'm trying to say is that the sort of ruling you fear would require a radical revolution on the Court that only Justice Thomas has ever embraced. Even Justice Scalia is not really so far right as all that.

The Law Talking Guy said...

I've got an idea, though, that might be popular: mandatory retirement for all federal judges at 75. Now the original "court-packing" scheme looked like this, so we have to be careful. How about a constitutional amendment permitting Congress to set a maximum retirement age for federal judges, but no lower than 70? 80? Seriously, the older codgers on the bench are a real problem, as everyone knows.

Raised By Republicans said...

Thanks, LTG. If you say that only Thomas is as populist as I fear then I'm with Seventh Sister in my anticipation that the health care reform bill will survive constitutional review.

The Law Talking Guy said...

I think calling Thomas a "populist" is in correct. There's not much "populist" in the academic notion of a "constitution-in-exile." Populism is usually about bashing elites (Wa(r)shington, Wall Street, etc.) or endorsing "old-fashion[]" values, not really about jurisprudental issues. Jeffrey Toobin, I think, is correct that there are no populists on the court at all right now, which is why the court (whether liberal or conservative) always makes very elitist and pro-business rulings.

Raised By Republicans said...

OK, I see your point. What term would you use to describe the kind of logic you describe being the base of the argument that health care mandates are unconstitutional?

Anonymous said...

I really have no idea what this health care reform bill is really about. I just think that Obama and others should try and confirm their honest thoughts on this. Don't blame everything on Obama.