I have received a significant number of emails after my earlier stated views on the national health care legislation were raised in the hearings this week before the United States Senate Committee on the Judiciary. Unfortunately, I am plowed under this week in litigation, but I wanted to offer a brief response to Harvard Law Professor and former Reagan Solicitor General Charles Fried who disagreed with my views on the danger to federalism.

Senator Cornyn asked Fried (and later the other witnesses) the same question:

But I just want to ask whether you agree — let me ask Professor Fried this question — Jonathan Turley, a law professor who testifies occasionally here in — before us, said that if the Supreme Court upholds the individual mandate, it’s hard to see what’s left of federalism.

Fried disagreed with my conclusion. His overall position is stated as follows:

I come here not as a partisan for this act. I think there are lots of problems with it. I’m not sure it’s good policy. I’m not sure it’s going to make the country any better. But I am quite sure that the health care mandate is constitutional.

I have my doubts about the part that Senator Grassley mentioned with the Medicare — Medicaid compulsion on the states. That’s something I worry about.

But the health care mandate I think really is — I wouldn’t have said a no-brainer, but I mustn’t with such intelligent brains going the other way.

Clearly, insurance is commerce. It’s — that was held by the Supreme Court in 1944. There was a time when the Supreme Court didn’t think it was commerce. But it has been ever since. And if you look at the mountain of legislation, most noticeably the ERISA legislation, you see that the Congress and the courts obviously think insurance is commerce.

And health care — surely, health care insurance surely is commerce, insuring as it does something like 18 percent of the gross national product.

Now if that’s so — if health care insurance is commerce, then does Congress have the right to regulate health care insurance? Of course it does.

And my authorities are not recent. They go back to John Marshall, who sat in the Virginia legislature at the time they ratified the Constitution, and who in 1824, in Gibbons v. Ogden, said regarding commerce’s — Congress’ commerce power, “What is this power? It is the power to regulate.” That is, to prescribe the rule by which commerce is governed.

To my mind that is the end of the story — the constitutional basis for the mandate. The mandate is a rule. More accurately, part of a system of rules by which commerce is to be governed, to quote Chief Justice Marshall.

And if that weren’t enough for you, though it is enough for me, you go back to Marshall in 1819 in McCulloch and Maryland, where he said, “The powers given to the government imply the ordinary means of execution. The government, which has a right to do an act,” surely to regulate health insurance, “and has imposed on it the duty of performing that act, must according to the dictates of reason be allowed to select the means.”

And that is the necessary and proper clause.

And he ends by saying, “Let the end be legitimate,” — that is to say the regulation of health insurance. “Let it be within the scope of the Constitution,” ERISA, “and all means which are appropriate, which are plainly adapted to that end, which are not prohibited but consistent with the letter and spirit of the Constitution are constitutional.”

Well, that to me is the end of the story. And I think that one thing about Judge Vinson’s opinion where he said, “If we strike down the mandate, everything else goes,” shows as well as anything could that the mandate is necessary to the accomplishment of that — of the regulation of health insurance.

But is it proper?

Well, there is I think an intellectual confusion here. Something is necessary — this is clearly necessary. It is improper only if it bumps up against some specific — some specific prohibition in the Constitution. And the only prohibitions I can think of that this bumps up against — the liberty clauses of the Fifth and Fourteenth Amendment. And if that’s so, then not only is Obamacare unconstitutional, but then so is Romneycare in Massachusetts. And I think that is an example of an argument that proves too much.

First, the reference to Vinson seems a bit forced. The fact that Judge Vinson found the entire statute to be unconstitutional due to the importance of the individual mandate is hardly convincing support on the constitutional question. I have discussed the severability issue in a column this week. Clearly an unconstitutional provision can also be central to a federal scheme. The centrality or the importance of the provision cannot establish its constitutionality or the matter becomes hopelessly circular. The individual mandate was necessary to generate funding for the program as a whole by requiring low-cost young people to pay into the system. The fact that this revenue stream is essential does not mean that the assertion of the federal government over these individuals is constitutional. For example, if Congress required all minorities to pay twice the amount of non-minority, the added revenue might be essential to the sustainability of the program, but it would still be clearly unconstitutional. Professor Fried seems to be arguing that, if a provision is essential to a federal scheme, it strongly suggests that it is constitutional because the federal government needs it to achieve these goals. That would be a rather maddening test since allows the ends to swallow the means for the purpose of constitutional review. The fact that the federal government has a legitimate interest in health care reform does not mean that any means is permissible in achieving that goal — so long as Congress makes it central to its legislative scheme.

Fried’s use of precedent on the inherent power of Congress to regulate health care is certainly a compelling and may ultimately prevail in the Supreme Court. However, for those concerned over the implications for federalism, it proves too much. “Let the end be legitimate . . . Let it be within the scope of the Constitution . . . and all means which are appropriate, which are plainly adapted to that end, which are not prohibited but consistent with the letter and spirit of the Constitution are constitutional.” That is precisely the concern raised as to the health care legislation: whether this is an appropriate mean “consistent with the letter and spirit of the Constitution.”

To say that cases like Gibbons allows Congress “to prescribe the rule by which commerce is governed” would remove anything to federal jurisdiction so long as it could be linked to commerce. That is certainly the message of Wickard, which we have previously discussed. However, many of us have long been troubled by the sweep of Wickard.

While Fried was asked about about any remaining limits on federal authority if this passes muster, he fails to offer any such limits. Instead, he suggests that any regulations of a matter touching commerce is within Congress’ limited and enumerated powers. That would leave no limits. Some of us simply do not believe that the Framers would have created a system of such limited powers and then allowed unlimited power on any decision that can be defined as affecting commerce. The power “to regulate commerce . . . . among the several states” was meant to prevent states from creating barriers to other states by leaving interstate commerce to the federal government. However, this interpretation would allow the government to sweep within its purview even acts of omission that frustrate its national goals. To say that this is a “no brainer” is to ignore the facially different type of claim raised in this case.

I have stated before that I believe that the cases favor Congress in the lower courts, but that there is strong precedent on both sides. Obviously, both challenging the law are emphasizing United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995) and United States v. Morrison, 529 U.S. 598, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000). The Court stated in Morrison that it would not accept “the argument that Congress may regulate noneconomic, violent criminal conduct based solely on the conduct’s aggregate effect on interstate commerce.” Id. at 617. In Lopez, the Court required more than what Professor Fried appears to demand in the nexus to support federal authority. In striking down the Gun-Free School Zones Act, the Court found that the claim could not be sustained “under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in [*37] the aggregate, substantially affects interstate commerce.” Lopez, 514 U.S. at 561. Again, the question as stated by Chief Justice Marshall is whether this claim conforms with “the letter and spirit of the constitution.”

As I have stated, people of good faith can disagree on these points and the matter cannot be fully resolved until put before the Supreme Court. Most people anticipate that Justice Kennedy will be the swing vote on a close decision. In both Lopez and Morrison, Kennedy voted to strike down the laws. However, in his concurrence, Kennedy did note that the history and language of the Constitution “counsels great restraint before the Court determines that the Clause is insufficient to support an exercise of the national power.” Moreover, Kennedy did vote to uphold the Controlled Substances Act in Gonzalez v. Raich, 545 U.S. 1 (2005). He agreed that, absent the authority, Congress could not regulate drugs. I am frankly not convinced that the same nexus can be established here.

There is also some question over Justice Scalia’s view since he also concurred in Raich. In that decision, Scalia noted that “[u]nlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. . . . Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce.” However, he also found that “[t]his is not a power that threatens to obliterate the line between “what is truly national and what is truly local emphasis added.”

I view the health care legislation as presenting a new type of federal claim and one that could leave few things as protected by federalism by expanding Congress’ enumerated powers to an unprecedented scope. I respect Professor Fried’s views (and those of many of my friends on the other side of this debate) but I find this a much closer question — the answer of which could leave little left for those who believe in strong federalism guarantees in the Constitution.

Jonathan Turley