Below is today’s column on the constitutional challenges to the health care legislation. I will be participating in a live chat at 1:00 p.m. at the Forum with USA Today.
The new health care law has states and citizens lining up — but not quite in the way President Obama or Congress had hoped. Across the country, lawsuits are being filed that could have sweeping implications, not just for health care but our constitutional system. To date, 14 states have joined the stampede to the courthouse to challenge the legislation. One of the most contested issues is the so-called individual mandate under which Congress has ordered all citizens to get medical insurance or face fines. Though the federal government has the clear advantage in such litigation, these challenges should not be dismissed as baseless political maneuvering. There is a legitimate concern for many that this mandate constitutes the greatest (and perhaps the most lethal) challenge to states’ rights in U.S. history.
With this legislation, Congress has effectively defined an uninsured 18-year-old man in Richmond as an interstate problem like a polluting factory. It is an assertion of federal power that is inherently at odds with the original vision of the Framers. If a citizen who fails to get health insurance is an interstate problem, it is difficult to see the limiting principle as Congress seeks to impose other requirements on citizens. The ultimate question may not be how Congress can prevail, but how much of states’ rights would be left if it prevailed.
Hypocrisy rears its head
To get to the constitutional question, you first have to strip away the deep layer of hypocrisy in Washington. Many lawmakers now screaming about the sanctity of federalism voted for prior laws that were overturned by the Supreme Court on federalism grounds. Moreover, few of these mostly Republican members uttered a word of support when states opposed federal interventions on medical marijuana and physician-assisted suicide during the Bush administration. The guarantee of federalism was essential to ratifying the Constitution and embodied in the 10th Amendment guaranteeing that “powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Historically, however, federalism is a constitutional rule honored largely in the breach by Congress.
For states’ rights advocates, the Constitution is like a contract that is openly violated by one party with impunity. On paper, the states remain sovereign powers, while in reality the federal government appears able to dictate everything from the ingredients of school lunches to speed limits. Congress now routinely collects taxes in order to return the money to the states with conditions on their conforming to federal demands.
There is no serious basis to challenge the right of Congress to impose a national medical plan on the states. In 2008, this country spent $2.3 trillion on health care — representing 16.2% of our gross domestic product. This is a national crisis demanding a national, as opposed to a state-by-state, solution. Yet, recognizing federal jurisdiction over health care does not mean that Congress is free to use any and all means to achieve its goals. Congress would need to show that the failure of an individual to get medical insurance constitutes an interstate commerce matter.
To be sure, the Supreme Court has stretched the meaning of interstate commerce to cover such things as the farmers growing wheat for their own consumption. Indeed, many long ago wrote off federalism as a rather quaint and outmoded concept. In Wickard v. Filburn (1942), Roscoe Filburn was growing wheat to feed his chickens, but the Supreme Court still defined the activity as interstate commerce because his crops reduced the amount of wheat on the open (and national) market. However, this was at least a traditional commercial activity. With the newly minted health care law, Congress is effectively ordering a citizen to buy a product and treating the uninsured citizen himself as an interstate problem in the same way Congress regulates endangered species.
‘Inference upon inference’
When Congress has ventured outside of traditional commercial areas, it has run into trouble. For example, in 1990, Congress criminalized certain conduct as part of its Gun-Free School Zones Act. The Supreme Court struck it down in 1995 and held that such laws did not substantially relate to interstate commerce. The court refused to “pile inference upon inference” to find an interstate claim.
This brings us back to that 18-year-old Virginian. Congress is declaring the failure to insure oneself to be an interstate matter. There is no question that being uninsured contributes to the national crisis in health care. If that 18-year-old has a car accident, it is the public that is likely to bear the costs of his care. However, if the failure to get insurance makes one the object of federal jurisdiction, it is hard to see the why other acts of omission will not be tied to national deficiencies in public health or education or family welfare.
Though strong arguments can be made for health care reform and the individual mandate, these are matters that should not be decided by mere fiat of Congress but rather by the courts. Federalism was already on life support before the individual mandate. Make no mistake about it, this plan might provide a bill of good health for the public, but it could amount to a “do not resuscitate” order for federalism.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors.
Sam,
If I remember correctly he was concerned about no Bill of Rights (rectified) and at least three other areas … hope I have them right … legislative powers not well enough defined (to his standards), too much power within the executive as opposed to the legislative and not enough protection for the country from the judicial department.
I can’t remember if slavery was an issue for him like it was for Mason.
Then again … the term gerrymandering came from his name and practice of same.
When people start arguing about the Constitution I always think of the “super-secret” deliberations and all the patriots who were against it. Sometimes their reasoning (in the past) sheds light on our present day questions and dilemmas.
Blouise – very good question to ponder!
I just read your article, Professor Turley,via RealClearPolitics and thank you for taking up the topic as a Constitutional law scholar. There have been too many blithe and out-of-hand dismissals of the possibility of a legal challenge from pundits without legal expertise. It seems a very real possibility that the states’ challenges will go to the highest court, but I wonder, given the Supreme Court’s recent decision in favor of the corporations and their “personhood”, if the Court will not look more kindly upon the federal government because of the support the HCR bill gives to the health insurance and pharmaceutical industries.
The purpose of the Constitution of the United States is to limit the power of the Federal government. The current health care law is a total abrogation to that purpose. Although I can appreciate the esoteric discussion about Federalism, the more important element of this disaster of a law is the fact that the Federal government is promulgating its citizens to enter into a specific type of commerce. I submit to you that nowhere in the Constitution does that power exist with the Federal government. If we acquiesce to this level of tyranny, then where does it stop? We can all create excuses as to why we would surrender our personal liberties to the government, but that does not make it correct. This health care law is an abomination to our great nation and should be vacated by the courts.
The Attorney General of Ohio has refused to join the wave of lawsuits against the health care legislation.
As an experienced constitutional lawyer, he found that “the individual mandate is inextricably intertwined with the comprehensive economic approach that Congress adopted to fix the deep flaws in our current health insurance system, which affects one-sixth of the American economy.”
He noted that the law “provides the states with a choice, and if they decline, the federal government will take on that responsibility.”
He declined to waste taxpayer dollars on political agendas through symbolic lawsuits that only deplete the limited resources of the State as well as the courts.
This serves as a good counter-column to JT’s:
[quotes]
News Releases
Ohio Will Not Challenge Health Care Law
3/29/2010
(COLUMBUS, Ohio) — Ohio will not join other state lawsuits filed to prevent implementation of H.R. 3590, the Patient Protection and Affordable Care Act, Attorney General Richard Cordray announced today.
“Based on my review of Ohio law and H.R. 3590, and my experience with federal constitutional law, I do not believe that the lawsuits filed against the Patient Protection and Affordable Care Act have any legal merit whatsoever,” Cordray said. “As a result, I believe it would be a waste of taxpayer resources for Ohio to join any such lawsuit, and we will not be doing so.”
Cordray said he drew upon his experience as an appellate lawyer and law professor to research the request and make his decision. “I had the good fortune to clerk for two United States Supreme Court justices, Byron White and Anthony Kennedy. These justices – appointed by Presidents Kennedy and Reagan, respectively – each taught me to review constitutional challenges to federal laws with great care, always keeping in mind the proper balance of power between the states and Congress within our federalist system. In turn, I tried to convey this same respect for federalism to my students during 13 years of teaching constitutional law at The Ohio State University Moritz College of Law. I have also encountered such issues in some of the seven cases I have had the privilege of arguing to the United States Supreme Court.”
Cordray addressed the two constitutional claims raised in the lawsuits:
Commerce Clause: “For 70 years, the U.S. Supreme Court has read the Commerce Clause broadly to authorize Congress to address our most pressing national economic concerns. In fact, during George Washington’s first term as President, under the Second Militia Act of 1792, Congress explicitly required many Americans to make an economic purchase: of a gun, ammunition, gunpowder and a knapsack to be properly prepared for military service. In the health care law, the individual mandate is inextricably intertwined with the comprehensive economic approach that Congress adopted to fix the deep flaws in our current health insurance system, which affects one-sixth of the American economy.”
Tenth Amendment: “For those who contend that the states alone can address insurance problems, the logic of their position is that we are condemned, forever, to an unsatisfactory ‘patchwork quilt’ of conflicting provisions and mixed results. This is precisely why our Founding Fathers rejected the anemic Articles of Confederation as inadequate, authorized Congress to legislate on matters of interstate commerce, and then made its laws supreme, notwithstanding any state laws to the contrary.
“Nobody can seriously argue that the health care industry operates only in ‘intrastate’ commerce, and the mandate provisions in this bill cannot be effectively disentangled from the comprehensive economic approach that Congress adopted to fix the deep flaws in our current health insurance system.
“Critics of the new law argue that the Tenth Amendment does not permit Congress to require states to establish insurance exchanges. But the law does not require that; it provides the states with a choice, and if they decline, the federal government will take on that responsibility. Just as Medicaid is a voluntary federal-state program whose constitutionality has been upheld by the courts, the health care reform law is entirely consistent with the Tenth Amendment.
“In these difficult budget times, I do not believe in wasting taxpayer dollars to pursue political agendas through symbolic lawsuits, which only deplete our limited resources, as well as those of our courts. Instead, the Ohio Attorney General’s office will continue to focus on our efforts to protect the financial security of Ohio families by holding Wall Street accountable and helping to level Ohio’s economic playing field.” [uq]
http://www.ohioattorneygeneral.gov/Briefing-Room/News-Releases/March-2010/Ohio-Will-not-Challenge-Health-Care-Law
Buddha,
I disagree that the problem is health insurance companies exemplifying the worst capitalism has to offer (although they frequently do). The problem is that ANY for-profit health care system gives an incentive to deny care (since this means lower profits).
Maybe Elbridge Gerry was right.
I don’t want to stray too far off the point of the Constitutionality of the HCR bill, but I read that Sen. Cronyn took a new and rather interesting twist in the GOP’s anti-HCR campaign. Now he wants the GOP to being taking credit for the elements within the bill which have been tauted as originally Republican ideas.
It was actually Sen. Grassley who originally proposed the individual mandate in 1993. His current offering of an explanation of his sudden disavowal was this: “Well, if it is unconstitutional now it was unconstitutional then. Quite frankly, no one thought about it one way or the other.” WTF!
But Cronyn is really creating a problem for the GOP with this twisted logic by trying to claim credit for certain concepts held in the bill. If those were good Republican ideas, why didn’t they support them? If their ideas were included in the ill, they can hardly claim no involvement or that their ideas weren’t heard. The bill could easily be called a bi-partisan victory by the liberals while making the GOP look foolish for not backing a bi-partsan effort. Are they only going to repeal the portions of the bill they don’t claim?
I disagree with the often-repeated notion that “federalism is on life support.” People often reach this conclusion when the states seem to “lose” a policy debate that they care about, but state-federal relations are incredibly complex, and when you start looking at the details across a range of policy areas, you see that the states *win* a lot of their encounters with the federal government or at least fight them to a draw. I’ve written a book that documents many of these state “wins” in policy areas like welfare reform, environmental policy, and education policy. See http://www.oupress.com/bookdetail.asp?isbn=978-0-8061-4003-2
I also describe the many points in the policymaking process at which state officials have opportunities to “push back” against the federal government if they choose. Just because Congress has passed a law doesn’t mean that’s the end of the story. A lot of details about health care reform still need to be fleshed out through the rulemaking process, and states have a voice in this process.
So, we don’t need to be too quick to take every new, apparent setback for states as the final nail in the coffin for federalism. Observers have been saying the sky is falling in this regard for over 200 years, but state governments are still pretty robust when they want to be (e.g. when they give themselves sufficient revenue bases, lawmaking powers, enforcement powers, etc., to get things done).
Neither conservatives nor liberals like to talk about states’ “wins” against the federal government. For conservatives, it undermines their claims of a massive, all-powerful federal bogeyman. For liberals, it makes it seem that the federal government can’t assertively solve problems without substantial state buy-in. So, we don’t hear the narrative of powerful state governments very often, but I think there’s a lot of evidence to support it.
Vince,
While I agree with your comment in spirit, I would ask you to consider that while judicial fiat negates the will of the people, our current system of electing Members of Congress virtually ensures corporate fiat, which does the same thing.
What exactly are state rights? Since about 1861 it has been stated with particularity what is not regulated or preempted by the Federal Government is left to the Individual States. What exactly is that?
In total agreement with Vince’s statement of 7:54 AM.
I agree with vlf: well said, mespo and rcampbell.
JT says “these are matters that should not be decided by mere fiat of Congress but rather by the courts.”
I disagree. These matters should be resolved by the democratically elected representatives of the people, not by unelected judges imposing their own particular economic views by judicial fiat.
If the people disagree, they will elect new representatives who will vote to reform, amend or repeal the law. If the people agree, the law will stand.
Some folks favor the rule of unelected judges in matters of economic policy. In the past, those judges invalidated child labor laws.
As Bob and I have gnawed on before, Commerce is an oft abused clause and I feel this to be a case of exactly that: abuse.
The current bill is a half-step at best and will only serve to prop up insurance companies – companies that along with oil companies – exemplify the very worst capitalism has to offer. The very nature of health care and its key relationship to national security indicate that profit skimming – call them “premiums” all you like – needs to come out of the system. Money spent on excessive administration costs – like vacation junkets and perks – is simply better spent on patients. If we are being charged a tax, then it makes more sense to have those dollars go directly into patient care, not some CEO’s pocket. What we’ll have here is what we have now – a hodge podge of state laws with a Federal overlay that will still encourage abusive rate changes and denial of coverage. People will still not get health care because the greedy bastards in Washington insist on monetizing our health for their profit when in most of the Western world health care is a right.
So by all means, let’s go with more of the same asshats who’ve allowed this country to pay the most for health care and still continue to rank around 40th in WHO quality of life and services reports. Yeah, let’s prop them up with a mandatory tax and then continue to let them fuck us over for profit while our relatives and loved ones can’t get treatment.
That sounds like a good idea.
JT: “To date, 14 states have joined the stampede to the courthouse to challenge the legislation.”
Correction: 14 states AND Orly Taitz:
http://www.scribd.com/doc/28679531/Taitz-v-Obama-First-Amended-Complaint
Orly added a count to her complaint in D.C.:
[quote] VIOLATION OF COMMERCE CLAUSE AND OF PLAINTIFF’S RIGHTS TO GAINFUL EMPLOYMENT AS A DOCTOR OF DENTAL SURGERY UPON DEFENDANT’S IMMINENT SIGHNING (sic) OF THE HEALTH BILL
1. Plaintiff re-alleges and incorporates by reference everything alleged previously and alleges the following:
2. Plaintiff is a Doctor of Dental Surgery, licensed by the state of California.
3. Plaintiff owns and operates a dental practice at xxxx , Rancho Santa Margarita CA.
4. Currently US House of Representatives is set approve via reconciliation one of two versions of the Health Bill (House Bill HR 3962 and “Senate Bill” to be reconciled in the House as HR 3590 are substantially Different). Defendant has repeatedly stated that if such bill is passed and reconciled as early as next week, he will immediately sign it into law in spite of general public outcry against such bill. This signing of the bill is imminent as Defendant, his administration and Democratic party leadership have engaged forceful arm twisting and de-facto bribery of US Senators in order to push passing of such bill, whereby Senator Mary Landrieu of Louisiana got a 100 million dollar de-facto bribe (Better known as a new “Louisiana Purchase”), senator Christopher Dodd of Connecticut got 300 million de-facto bribe and Senator Ben Nelson of Nebraska got an infinity amount of dollars de facto bribe to sign the Senate version of such bill. [unquote]
Then she moved to consolidate it with the other cases:
[quote] UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Dr. ORLY TAITZ, ESQ, PRO SE
Plaintiff,
Barack Hussein Obama,
Defendent
§ 28 USC § 1407(c)(ii)
Pursuant to 28 USC §1407(c)(ii) Plaintiff Orly Taitz moves for the Multi District Judicial Panel to coordinate and consolidate this action with Florida et al. v. United States Department of Health and Human Services et al., United States District Court for the Northern District of Florida, Pensacola Division, Case No. 3-10-cv-91 and motions for both actions to be heard jointly by the Honorable Royce Lamberth in the US District Court for the District of Columbia. [unquote]
It will all be one big happy family in the courthouse.
mespo727272 and rcampbell:
Well said. Thank you.
Professor
I’ve heard several cogent arguments put forth that seem to support the mandate as Constitutional.
1) Are we not mandated to buy FICA insurance? Are we not mandated to enroll in and accept Medicare?
2) There is also the precedent of mandating that all US auto manufacturers to install seat belts. This appears to be applicable particularly in light of the SCOTUS’s Citizens’ United finding. If corporations have the rights of people, then since the fed can mandate a product compliance for corporations, they certainly can mandate people’s actions.
3) I’ve heard Senator Ron Wyden (D-Ore) state the bill includes opt-outs for states. They can develop their own plans even excluding the individual mandate as long as they meet certain minimum requirments. Certainly the fed has established minimum standard guidelines in he past.
4) I’ve also heard the bill is written such that it charges every person and every company a tax. The fed’s authority to tax is certainly Constitutional. The bill then provides a 100% tax credit for having health insurance from any source.
We have some pretty darned bright legal minds hanging around here. I’ll leave the determination of the validity of the above and other points to you and to them.
“This is a national crisis demanding a national, as opposed to a state-by-state, solution. Yet, recognizing federal jurisdiction over health care does not mean that Congress is free to use any and all means to achieve its goals.”
*******************
Individual insurance mandates are nothing new and have passed constitutional muster at the state level in the past. Just look at state imposed mandatory automobile insurance or HUD mandated home owners insurance. The statement above is also a tad curious. Why, when faced with an admitted “national crisis,” would Congress be reluctant to use the entire panoply of constitutional powers available to address it? Finally, I can think of no issue that bears as directly on interstate commerce as profit- drunk health insurers imposing wave after wave of exclusions, price increases, and unreasonable coverage denials on citizens of differing states with little effective state regulation. To me, this the classic case for national regulation of a supposed “regulated” industry.
I would argue that the individual mandate is, in effect, a tax.