In a post last Tuesday, MaxedOutMama agreed with my view. At her suggestion, a spirited debate arose in comments on her blog. This post collects my various thoughts.
- Issue: Though there are arguments under the First, Fifth and Fourteenth Amendments, the principal claim is that, because the requirement to buy insurance exceeds Congress' power to regulate interstate commerce (Art. I, § 8, cl. 3) or tax (Art. I, § 8, cl. 1), the law impermissibly intrudes on powers reserved to the states under the Tenth Amendment.
- Commerce clause: The scope of the interstate commerce clause will be the key. It grants Congress authority to "regulate commerce . . . among the several states." Some complain that the current judicial reading of this language is limitless, which is not quite true. Activities subject to the commerce clause must be both "interstate" and "commerce."
- Interstate: In U.S. v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 550 (1944), the Supreme Court already determined that insurance qualified as interstate commerce. This still is so even for insurers selling within a single state--the standard is whether Congress logically concluded the activity has an interstate effect. See Gonzales v. Raich, 545 U.S. 1, 14 (2005) ("We need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a "rational basis" exists for so concluding."); United States v. Lopez, 514 U.S. 549, 558 (1995) ("Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities."). Indeed, in Wickard v. Filburn, 317 U.S. 111, 125 (1942), the Supreme Court held that even grain grown for home consumption qualified: "But even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'" Thus, there is no reason to believe that a court suddenly would reverse a precedent established for 2/3rds of a century.
- Commerce: The more serious claim is that, while the purchase of goods or services may be commerce, an obligation to purchase is beyond the scope of the provision. It is true that the Supreme Court never has interpreted the commerce clause to "require the purchase of something." But, in modern Supreme Court opinions, the only circumstances not considered commerce are those not involving a genuine commercial transaction. Take, for example, United States v. Morrison, 529 U.S. 598, 613 (2000), striking down a Federal private right of action for victims of gender-motivated violence: "[G]ender-motivated crimes are not, in any sense of the phrase, economic activity." By contrast, the purchase of insurance, no matter if compelled, unquestionably is economic activity. Some argue that upholding jurisdiction over non-activity would vitiate "any limitation on the commerce power of Congress." But, the Congressional power has never been confined to voluntary exchanges, as the Third Circuit observed in United States v. Bishop, 66 F.3d 569 (3d. Cir.), cert. denied, 516 U.S. 1032 (1995) (citations omitted):
The Supreme Court has never before used this definition and the dissent does not state how or from where it is derived, nor how the definition accounts for prior Supreme Court cases which involved no voluntary economic exchange. Where the Court has used a potentially ambiguous term, as "commercial" arguably is, we prefer to apply the definitions used by the court itself. Thus, we are content to rely on Lopez to define commercial as including those activities which form a part of an economic enterprise.This is especially true here, given that insurance already is firmly considered interstate and commerce.
- Taxing power: Congress has the power "to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States." This is relevant, because the penalty for not purchasing insurance is (page 33) "assessed through the [Internal Revenue] Code and accounted for as an additional amount of Federal tax owed." So, Congress seemingly also relied on its taxing power, also contained in the Sixteenth Amendment.
To me, this supports the Constitutionality of the health insurance mandate:
Look at payroll taxes, for example. We require employees to contribute to Social Security, Medicare/Medicaid. In effect, we require the purchase of services (pension and medical insurance). Yes, these are government services, but why should private services be different?Put differently, is Social Security Constitutional? Yes--Helvering v. Davis, 301 U.S. 619, 640-45 (1937). Would it be unconstitutional had Congress chosen to fund old-age and disability payments via private investments? I doubt it--George W. Bush proposed limited (and, admittedly optional) private investment five years ago. Indeed, by analogy, see Berman v. Parker, 348 U.S. 26, 33-34 (1954) (upholding condemnation for private urban renewal programs) ("The public end may be as well or better served through an agency of private enterprise than through a department of government -- or so the Congress might conclude. We cannot say that public ownership is the sole method. . .").
Still, others argue that Printz v United States, 521 U.S. 898, 922 (1997), limits Congress' ability to command state legal authority: "[t]he power of the Federal Government would be augmented immeasurably if it were able to impress into its service--and at no cost to itself--the police officers of the 50 States." If the states are right that the new law includes "unfunded mandates," this has some merit. Yet, as I read the new act, that would be difficult to establish as a matter of law (i.e., for lawyer-readers, on summary judgment or a motion to dismiss before the law is enforced (the mandate doesn't begin until 2014 and isn't fully phased-in until 2016)). If the mandate is accompanied by a subsidy -- as the law purports to say -- then it's not apparent on its face that the law establishes an unfunded mandate. Thus, a Printz claim might succeed only "as applied"--after a few years of experience and a full development of facts at trial.
A mandate to buy health insurance is a valid regulation of interstate commerce and not contrary to the taxing power. Given that, the provision is within Federal jurisdiction. So, under New York v. United States, 505 U. S. 144, 156 (1992), "[i]f a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States." Thus, the new "mandate" to buy health insurance will be upheld as Constitutional.
That being said, I hope the exercise of such power convinces the voters to elect a Republican majority this fall.