Another Constitutional Scholar Weighs in on the Constitutionality of the Individual Mandate

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from Constitutional Law Professor Will Huhn:

In the wake of the enactment of the Senate's version of health care reform, and as we await action by the Senate on the House's Reconciliation Act of 2010 making certain changes to the funding formulas, opposition to the bill shifts to the legal arena – is the Act constitutional? Specifically, is the individual mandate constitutional? The constitutionality of the individual mandate has already been the subject of widespread discussion. Randy Barnett published a column in the Washington Post on Sunday discussing various arguments that might be made. Sandy Levinson posted an essay on the subject yesterday in Jack Balkin's blog Balkinization. Jack himself authored this analysis in the New England Journal of Medicine on January 13. And here is an ariticle by Ruth Marcus at Real Clear Politics posted November 25, 2009, in which she concludes that both the Commerce Clause and the Tax and Spending Clause confer authority upon Congress to require people to have health insurance.

Here are some of the arguments in support of the constitutionality of the individual mandate.

1. It has been a long time since the courts have felt competent to strike down legislation on the ground that it conflicts with a particular theory of economics. It is now universally understood that Justice Oliver Wendell Holmes, Jr., was correct when he said, in his dissent in Lochner v. New York (1905), that:

The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics. The other day we sustained the Massachusetts vaccination law. … Two years ago we upheld the prohibition of sales of stock on margins, or for future delivery, in the Constitution of California. … The decision sustaining an eight-hour law for miners is still recent. … Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a 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.

In 1963, in the case of Ferguson v. Skrupa, the Supreme Court expressly adopted Holmes' dissent in Lochner as its own, stating, "We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws."

2. Article I, Section 8, Clause 3 of the Constitution (the Commerce Clause) grants Congress the power to regulate commerce among the states. Since 1937 the Supreme Court has interpreted this to mean that Congress has power to enact legislation regulating economic activity that it has a rational basis for believing, in the aggregate, has a substantial economic effect on interstate commerce. Health insurance coverage – or the absence of health insurance coverage – without a doubt substantially affects interstate commerce.

3. Businesses of all kinds – lawyers, doctors, building contractors – are required to carry insurance. All persons driving automobiles are required by law to purchase insurance. The fact that malpractice insurance or auto insurance must be purchased from private companies does not present a problem under the Constitution.

4. The individual mandate contained in the health care bill does not impose a criminal penalty. Nor is it a "taking" under the 5th Amendment, which implicitly prohibits the taking of private property for private use. Instead, as Jack Balkin and Ruth Marcus note, the individual mandate is a tax. The law simply says to individuals and employers, "Purchase health insurance coverage or pay a fee." Under Article I, Section 8, Clause 1 of the Constitution, the only limit on the power of the federal government to tax and spend is that it be "for the general welfare." And, as the Court stated in the case of South Dakota v. Dole (1987), "In considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress."

5. As a practical matter, this is not a situation where the courts can carve out an objectionable portion of a law and declare it unconstitutional without affecting the entire statute. The individual mandate is intimately connected to other portions of the bill. Without the individual mandate to purchase health insurance, it would not be possible to abolish the exclusion for preexisting conditions; otherwise people would simply wait until they got sick to purchase insurance. The same goes for the abolition of ratings for gender and age, and annual and lifetime limits on coverage. If it were possible to reform the health insurance industry without including the individual mandate, that would have been done. If the courts were to invalidate the individual mandate, they would have to kill almost the entire bill.

6. South Carolina Attorney General Henry McMaster and Florida Attorney General Bill McCollum announced that they intend to file suit challenging the federal law on the ground that the individual mandate infringes upon "state sovereignty." What authority do they expect to cite in support of idea that state law makes the federal law unconstitutional? John C. Calhoun's Protest and Exposition setting forth his theories of interposition and nullification? George Wallace's 1963 Inauguration Address?

Let us rise to the call of freedom-loving blood that is in us and send our answer to the tyranny that clanks its chains upon the South. In the name of the greatest people that have ever trod this earth, I draw the line in the dust and toss the gauntlet before the feet of tyranny . . . and I say . . . segregation today . . . segregation tomorrow . . . segregation forever.

These extreme positions on "states rights" have been rejected by the American people time and again – President Andrew Jackson responded to Calhoun, Daniel Webster replied to Robert Hayne, Lincoln's arguments defeated those of Jefferson Davis, and the nation chose Martin Luther King, Jr., and the Supreme Court's decision in Brown v. Board of Education over George Wallace and those who believed that states' rights included the right to segregate the races.

Furthermore, the Constitution expressly addresses this point. Article VI, Clause 2 of the Constitution states:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.

In a future column, when their positions have been set forth in more detail, I will respond to the "state sovereignty" arguments of the state attorneys general.

In addition to these legal arguments there is the political reality. It is no doubt true that the individual mandate is politically unpopular. I favor the health care bill, but I don't like the individual mandate. When they were first enacted I didn't like the seat bill laws. And when laws requiring us to carry automobile insurance were first enacted I didn't like them either. But guess who did like both the seat belt law and the requirement to purchase auto insurance, and guess who likes the mandate to purchase health insurance? That's right, the insurance companies. It was the insurance companies who insisted upon the inclusion of the individual mandate in the health care reform bill, and if an attempt is made to repeal this provision, they will unleash their political clout on the opponents of the bill. The insurance companies are not about to support a libertarian movement to repeal the individual mandate. Republicans will face a difficult choice. If they get behind the Tea Party Movement on this question, they risk seeing the health insurance companies and large employers join the Democratic coalition in favor of this bill. Not pretty, but true.

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Edited March 25, 2010 by Galt's gallstones