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
Since I am such a slow typist, I missed Dr. McHugh’s statements. I think she said what I was trying to say in a much more cogent way.
Bob,
The living and breathing isn’t what is triggering the commerce clause, it is the fact that when they are having trouble living and breathing that they trigger it when they seek care. I don’t see that aspect being the government’s lack of planning, but the individual’s lack of planning or inability to plan for it because of the monumental cost. I would agree that it would make more sense to take it out of the tax rolls, but the politics of that are not possible and then you would have cries of Socialism from the Right and some on the Left. And the effect on society would be the same. Citizens would be paying for medical coverage that they don’t want through their taxes.
We may have to agree to disagree on this one Bob.
Dr. McHugh,
Would you – as a practicing physician – be opposed to maximizing the efficiencies of the insurance/risk pool model by 1) streamlining billing to a single payment/single paperwork stream, 2) maximizing coverage by utilizing the largest possible risk pool to lower costs for all treatment, and 3) maximizing dollars spent on coverage over executive compensation and shareholder dividends by operating the pool as a not-for-profit endeavor held as a public trust?
“While a citizen can be forced to purchase auto insurance; that is only because driving an automobile is a privilege which the citizen CHOOSES to engage in. The mandate for auto insurance is PREDICATED ON the choice of the citizen.”
“A health insurance mandate is PREDICATED ON the mere existence of a living citizen. The mandate REMOVES ALL CHOICE from the individual per whether to engage in a particular form of commerce. This is yet another example of overreaching legislation treating the citizen of the United States as property of the United States.” (Bob,Esq.)
“Not everyone needs to have a car, but doesn’t everyone need to see a doctor at some point in their lives? I would view that health insurance is even more important for society and has a greater impact (no pun intended!) than auto insurance on commerce.” (rafflaw)
I am not a lawyer. As a family physician, I appreciate the response of rafflaw. In regard to what is said by Bob,Esq, would it be acceptable to say in the second paragraph that “A health insurance mandate is PREDICATED ON the fact of life that we are all vulnerable human beings and will need health care as both a privilege and a right at some time in our lives? To me, the mandate simply reflects our acceptance of the reality of the need for all of us to have health care coverage as a NECESSITY, due to our humanity.
Maybe because I am a physician, I believe that health care cannot just be seen as a product that we buy if we need it. The reality of life is that we may not find out ahead of time when we will need health care insurance coverage. To me, it makes common sense that we would all want to have health insurance coverage for our own good and for the common good.
Sincerely, Rosemary Eileen McHugh, M.D., M.B.A., Chicago, Illinois
ok, I’m not a lawyer….I’m swimming in deep water here, but I AM a citizen who pays taxes and I #1 would argue that it is the majority by leaps and bounds that NEED a car to engage in commerce and #2 “A health insurance mandate is PREDICATED ON the mere existence of a living citizen. The mandate REMOVES ALL CHOICE from the individual per whether to engage in a particular form of commerce. This is yet another example of overreaching legislation treating the citizen of the United States as property of the United States.” (Bob,Esq.)”
If healthcare is a right, like the right to vote, the right to freedom of religeon, the right of free speech, the right to own property, the right to representation, then the argument is not one of commerce is it? And I believe that healthcare is a right….if it is commerce, that means we are ALL chattel and must be forced to the will of business rather than having businesses regulated to ensure that they are safe and not harmful in their manner of execution…
that’s my non-party line and I’m stickin to it…
Rafflaw: “Their living and breathing isn’t what costs the rest of us in society, it is when they need medical help and can’t pay for it because they don’t have insurance and the costs are huge.”
But you’re triggering the commerce clause solely because they’re living and breathing. Take a step back and think. Once simple living and breathing becomes enough of a condition precedent to engage the commerce power, then tell me sir, how can you tell me with a straight face that the Federal government is a system of SPECIFICALLY ENUMERATED POWERS? You can’t. You’ve completely inverted the social compact and the republic.
The Federal government’s lack of planning is not the citizen’s emergency.
The ONLY constitutional way to achieve health care reform is through the general tax rolls.
Why?
First of all, there’s all that reasoning behind that old chestnut that there’s no such thing as tax payer standing. The rights of the individual, as tax payer, are not infringed if the Fed chooses to spend a greater portion of the tax rolls on health care reform.
See the difference between that and forcing a citizen to engage in a particular form of commerce simply by virtue that the citizen happens to be living and breathing comrade?
Bob,
Living is most certainly not commerce. There are legal ways to legislate universal health care although this surely is neither UHC nor is this the appropriate approach via the Commerce Clause. As you’ve intimated elsewhere, the appropriate approach is regulation of business practices and/or nationalization of that business market segment, but as a form of individual mandate based on the Commerce Clause? It’s simply tyranny.
I must need a nap because I can’t even spell “first” correctly! Sorry.
Bob,
maybe I am missing something, it wouldn’t be the firs time, but don’t I have to make a choice to see a doctor at some time or a hosptial and if I choose to not get insurance, doesn’t that impact commerce because the rest of us are paying for it in the overhead in our insurance payments and the doctors and hospitals have to give their services for free if the government doesn’t subsidize that care? Their living and breathing isn’t what costs the rest of us in society, it is when they need medical help and can’t pay for it because they don’t have insurance and the costs are huge.
I may be shortsighted, but I don’t see an insurance mandate to be an attack on the American way, but maybe it is the incrementalism that was mentioned earlier.
Buddha,
Thanks. I have a hard time reading the commerce clause analysis regarding this subject as I don’t see living as a form of commerce. How about you?
“While Fried was asked about my view that there are no remaining limits on federal authority if this passes muster, he fails to offer any such limits.”
It is really an exaggeration to say there are “no remaining limits on federal authority.”
The CRS Report analyzed possible limits of substantive due process, equal protection, takings clause, tenth amendment and religious exemptions.
The exercise of commerce power to regulate and adjust the burdens and benefits of economic activity is itself subject to rational basis review.
The Constitution itself provides for representative democratic processes of elections and subsequent legislation to limit the excess of authority.
So there are limitations. JT just does not mention them.
These constitutional law professors see themselves at the center of the world. Of course they want lawsuits. Of course they want to run the the Supreme Court. Of course they want judicial fiats striking down entire laws, since they provide the theories for those decrees.
Let the electoral and legislative process work its way.
If someone is mandated in 2014, let the lawsuit begin then.
Rafflaw: “Not everyone needs to have a car, but doesn’t everyone need to see a doctor at some point in their lives?”
Not needing the car is part and parcel with the necessary element of CHOICE regarding whether or not to engage in commerce.
Life does not necessitate commerce. While I’m alive, I choose whether or not to engage in commerce. If I do not engage in commerce, then the commerce clause is inapplicable and thus holds no power over me. Accordingly, the commerce clause cannot be used to treat people effectively as widgets to do whatever congress commands; simply by virtue of the citizen exercising his right to live and breathe.
Ready? We fought against countries that were predicated upon political philosophies like the foregoing. Remember?
Finally, the measure of importance of a particular agenda IN NO WAY AMENDS THE CONSTITUTION so as to carry it out.
Living is not a form of commerce. Thus ends the commerce clause analysis.
Bob,
“So he says tell me I’m wrong…and I say I can’t baby; cause you’re not.” – The Mad Bomber What Bombs at Midnight
“It’s deja vu all over again.” – Yogi Berra
Bob, Esq.,
I missed your posting because I was in the middle of my prior one. I am not sure I agree with the auto insurance example. Not everyone needs to have a car, but doesn’t everyone need to see a doctor at some point in their lives? I would view that health insurance is even more important for society and has a greater impact (no pun intended!) than auto insurance on commerce. While I agree with you that I would prefer a medicare for all type system, I don’t think our current political culture will make that a likely alternative. Is there any impact that without this plan the 45,000 people(accoridng to the Harvard study I believe) who die because they don’t have coverage have no hope?
“While a citizen can be forced to purchase auto insurance; that is only because driving an automobile is a privilege which the citizen CHOOSES to engage in. The mandate for auto insurance is PREDICATED ON the choice of the citizen.
A health insurance mandate is PREDICATED ON the mere existence of a living citizen. The mandate REMOVES ALL CHOICE from the individual per whether to engage in a particular form of commerce. This is yet another example of overreaching legislation treating the citizen of the United States as property of the United States.” (Bob,Esq.)
=======================================================
Now, in all honesty, what Bob,Esq. wrote and the words he chose to convey the thought make a lot of sense to me.
If he is wrong … how is he wrong? … because his reasoning seems straight forward.
Wow, I have to admit that I found Prof. Fried’s explanation convincing, but I also want to admit up front that I am in favor of a national health insurance plan. Maybe I missed something, but doesn’t the drain on society if people are uninsured have a significant impact on commerce? When they are not insured or can’t be under current insurance companies rules, don’t they negatively impact commerce by forcing hospitals and doctors to treat them for no charge? Isn’t this a strong enough nexus to commerce to provide a basis for accepting the individual mandate? I do want to say that I am not the biggest fan of the individual mandate because I would have preferred a Medicare for all plan or a public option. If this individual mandate and the health care law is overturned, doesn’t that put a question mark over Medicare and Medicaid’s constitutionality? Doesn’t this put any National requirement or regulation at risk if the individual mandate is thrown out if the issue at hand is not prescribed in the Constitution specifically? Is it me or do the Morrison and Lopez cases seem less economic and more criminal in nature and therefore not a good example for proving that an individual mandate to buy insurance to save all insurance payers in the end, is a violation of Federalism? The Holy cow, my head is spinning at this point. I may be getting in over my head!
On the most basic level…
Health care reform can only be achieved via reform of medicare and funding through the general tax rolls. Attempting to force the issue via ‘creative constitutional thinking,’ as democrats have, leads to disaster.
With that said, I don’t see where congress was empowered to force citizens to engage in a certain form of commerce via the commerce clause simply by virtue of the existence of the citizen.
While a citizen can be forced to purchase auto insurance; that is only because driving an automobile is a privilege which the citizen CHOOSES to engage in. The mandate for auto insurance is PREDICATED ON the choice of the citizen.
A health insurance mandate is PREDICATED ON the mere existence of a living citizen. The mandate REMOVES ALL CHOICE from the individual per whether to engage in a particular form of commerce. This is yet another example of overreaching legislation treating the citizen of the United States as property of the United States.
If the mere existence of a living citizen is enough to engage the commerce power, then there is absolutely no line between the individual and the state; voiding the social compact, as restated in the Declaration, as illusory and reversing EVERY SINGLE PRINCIPLE OF OUR REPUBLIC through ignoring the most fundamental order of operations — Rights confer power; not vice versa.
Tyranny moves not in leaps and bounds, but by small steps.
The video I posted on the “pinto”thread where Mr Fried was talking about congress and commerce at the end of the video he says”if Obamacare is unconstitutional so is Romney care”
Oh I am aghast…..or am I….