In a recent speech before the Heritage Foundation, Senator Orrin Hatch (R, Utah) cited one of my column’s stating that I consider the claim of federal jurisdiction in the health care litigation to be a threat to federalism. That is certainly true (here). However, Senator Hatch then added that I had come to change my views over the course of the debate. That last addition is not accurate so I thought I would offer a brief response.
I should begin with two observations. First, most academics relished being quoted, even inaccurately. Indeed, raging academic egos would prefer an inaccurate quotation to no quotation at all. Second, Senator Hatch and I have had a number of both private and public discussions of the law through the years. I have always valued his genuine interest in the law despite our disagreements on some issues. We have not always disagreed, but when we have disagreed (such as on the D.C. Vote legislation) he has always been civil and respectful.
In his speech, Senator Hatch stated;
Only a couple of weeks ago, George Washington University law professor Jonathan Turley wrote in USA Today that the federal insurance mandate is “the greatest (and perhaps the most lethal)” threat to federalism in U.S. history. Federalism, he wrote, “was already on life support,” and this mandate could amount to a do-not-resuscitate order.
That is a startling admission from a liberal scholar who defends the health care law as good policy and last fall dismissed constitutional arguments against it as hardly worth discussing.
I am unsure what Senator Hatch is referencing concerning the dismissal of constitutional arguments, but I suspect it was based on remarks that I gave on Capitol Hill last year. On that occasion, I was asked to give the arguments in favor of the health care legislation. I agreed to appear on the express caveat to the organizers that I had reservations concerning the federalism implications of the proposals flouting around the hill. I agreed to present the argument on the other side as part of an overall discussion of the different legislative proposals.
At the event, I also stated my concern over the federalism implications. However, as I stated in the column referenced by Senator Hatch, I noted that Congress would have the clear advantage given the holdings in past cases. I stated that the Supreme Court would have to set aside some of those prior decisions to overturn the law — or engage in some pretty creative distinctions. I was certainly dismissive of those who argued that the law was clearly unconstitutional under existing precedent — as opposed to constitutional principles. I found efforts to reconcile cases like Wickard to support a challenge to be rather forced and implausible. Given the size of the health care economy and the broad definition given interstate commerce in Wickard (covering crops grown for purely intrastate consumption), I stated that existing case law would appear to give Congress ample room to pass such laws. The question is whether this assertion of jurisdiction will trigger a backlash on the Court that alters the existing case law.
During that event, I also criticized the way Congress was structuring the health care legislation and stated that I believed it would have been better to leave it up to states to opt in or opt out (at the possible cost of losing federal health care funding). That would have rendered much of this controversy moot.
Thus, I have always expressed concern over the federalism implications of the legislation, but I have also stated that the case law favors Congress — particularly on the lower court levels leading to the Supreme Court. My position has not changed as reflected in the above column. While I cannot always be right, I do try to be consistent. That is not to say that I have not changed my mind on some subjects through the years. This just does not happened to be one of them.
Ironically, the challenge to the health care legislation will rely heavily on the decision to overturning the Gun Free School Zones Act of 1990 in United States v. Alfonso Lopez, Jr., 514 U.S. 549 (1995). The Court struck down the law as clearly violative of state’s rights and federalism, which the Senate Republicans overwhelmingly supported with their Democratic colleagues.