Is the Health Care Law Constitutional?
Health Care Law is Unconstitutional
- Trevor Burrus
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- 4 months ago
Why the Health Care Law is Unconstitutional
Congress has limited, enumerated powers under the Constitution. One of those is to regulate interstate commerce, which means ensuring that commerce flows easily between the states. Although the Supreme Court has expanded that regulatory authority to reach local economic activity that, in the aggregate, has a “substantial effect on interstate commerce,” Congress still lacks the power to compel citizens to enter into commerce for the purposes of regulating them — which is what the Affordable Care Act’s “individual mandate” does. Moreover, the penalty for not complying with the mandate is not a tax and, if it is, it is an unconstitutional one because it is not apportioned by population. That point is especially noteworthy because the individual mandate was passed in part to avoid the political accountability that raising taxes would have brought.
Those are my claims. But I’m going to concentrate my initial thoughts in the clouds, so to speak, rather than the weeds. I begin with a crucial point: Enforcing limits on governmental power — especially Congress’s commerce power — is not and never has been about discovering limits to the power. Instead, it is about defining and enforcing those limits. Since the landmark commerce power cases of the late ’30s and early ’40s, however, the Supreme Court has largely treated the limits on federal power as detectable rather than definable. Those cases looked at our system of commerce as a pond and Congress’s power as extending over the ripples caused by disturbances on the surface. And if the effects of a single water bug or pebble were not detectable enough, we were told to imagine the combined effects of all those water bugs or pebbles.
That theory differs from how the Court looked at the commerce power before the New Deal, when Congress’s power was limited by type, rather than degree. In other words, activities such as “manufacturing” were deemed off-limits to Congress not by virtue of the effects they had on interstate commerce — the ripples in the pond — but by virtue of the type of thing it was. Even though it produced items for commerce, manufacturing was local in nature, so Congress had no power to regulate it. Thus limits were articulated, rather than discovered.
Although many people thought that the Supreme Court abandoned this line of thinking during the New Deal, the Court reaffirmed that type-versus-degree distinction in the 1995 case of United States v. Lopez (followed in 2000 by another similar case). In Lopez, the Court struck down the Gun-Free School Zone Act not because guns in school zones don’t cause sufficient ripples in the national commercial pond, but because a gun law is fundamentally different from a commercial regulation. Indeed, the Framers knew that, if conceived broadly enough, everything has an effect on commerce. The ripples in the pond can affect the sand on the shore and even the animals on the land. Unless a distinction is drawn between the sand and the water — or, to leave that analogy, between buying something and not buying something — Congress’s power is unlimited.
With the individual mandate, we also distinguish power by kind, rather than degree. Not only is the decision not to buy insurance not commerce, the idea that such a decision falls under Congress’s regulatory authority because it affects commerce is dangerous precisely because it is correct: of course decisions not to buy something affect commerce (indeed, any decision, action, or inaction ultimately affects commerce). Giving the government the power to regulate those decisions removes all limits on federal power.
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The Debaters
The Health Care Law is Constitutional
By Erwin Chemerinsky
Erwin Chemerinsky is the founding dean and distinguished professor of law at the University of California, Irvine School of Law, with a joint appointment in Political Science.
Previo…
Why the Health Care Law is Unconstitutional
By Trevor Burrus
Trevor Burrus is a legal associate at the Cato Institute's Center for Constitutional Studies. His research interests include constitutional law, civil and criminal law, legal and p…
Individual Health Insurance Mandate is Not a Difficult Constitutional Question
By Anthony Kammer
Anthony Kammer is a litigation fellow in the Democracy Program at Demos. He graduated in 2011 from Harvard Law School, where he was President of the Harvard Legal Theory Forum and a fou…
The Discussion
Lawrence,
I don't have a problem at all paying for insurance. In fact, I see insurance a great protection to have in the event of unexpected events. Let's face it, life does interrupt lives with the unexpected and I find it comforting to know I have already paid for a large portion of expenses. To me, it is a safety measure. However, I want to pay for me --- not everyone else. If insurance was affordable as it was not too long ago - everyone could afford it. I definitely don't want to pay for people who should not even be here. That is where one of the largest cost factors stems from.
Congratulations on all your accomplishments Lawrence! I am sure it was quite a struggle for you and your family in many ways but you think of the incredible legacy you are leaving your native nation.You truly are a role model.
You mention the substandard circumstances in which you overcame your difficulties. Herein lies my argument. You and your family owned your responsibilities and in spite of your treatment over generations-you rose above them and are moving on.
We as a nation need to stop catering to everyone else and focus on our nation; start helping and stop enabling! Enabling simply gives lazy people excuses as to why they are where they are. We have become a nation of enabling. Good luck.
Hi Guys, I have found this debate informative and enjoy the varied points of view. However, I am wondering if we are getting too far off the track here. We are going from the legal issue of a law and who it will and will not hold include - to covert action.....
Just a thought.
Michael,
Hate to burst your bubble but - illegals do receive benefit via their children.Benefits; reduced housing,healthcare,food stamps. Children are the new meal ticket for many different people. The more you have the more $$ the gov't. gives.
Re: E-verify and Colorado. CO is among the states that requires public contractors and state agencies to use e-verify. However, while Hickenlopper was Mayor he made Denver a sanctuary city for illegals. Restaurants love them because they can pay them under the table.Almost impossible to find an english speaking construction worker. Construction workers; spanish speaking.
I disagree with Chemerinsky.Paying for everyone is not affordable.Interesing how gov't quickly looks to the same group; legal citizens to carry all burdens. The main problem with health & auto insurance are the same. People no longer pay for them & their families in either case. Real issue goes unaddressed; appoximately 25 mil illegals in this country receiving free health care, social security,... We pay for young- both illegal & legal- females to have babies we pay for. The legacy needs to end. Hospital costs soared b/c of illegals rights to sue for misdiagnosis. Go to any ER in any hospital & watch the payment process. Why not charge illegals for their inactivity to be responsible? Car insurance involves paying for uninsured.
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I don’t understand why the administration is even going the “commerce” route on this.
The argument that Congress cannot regulate inactivity does not stand up in court – literally. Failure to answer a jury summons, a subpoena, a demand under the discovery process – all forms of inactivity in response to a government demand under the law – can lead to fines on people (animate and inanimate) and even imprisonment for individuals. Also, activity under these demands all force people into involuntary expenditure and costs of some sort or other.
Universal healthcare is arguably just as important to the welfare of society as universal justice. Both should have access to the same powers of persuasion or, if you prefer, coercion.
Anthony, the reason the activity/inactivity distinction has never been raised is because Congress had never, in the history of our nation, passed a law under the Commerce Clause asserting that inactivity amounted to interstate commerse. If inactivity in the collective can be found to have an impact on interstate commerce, sufficent to warrant federal regulation, there is no cognizable limit to Congressional power.
Finally, how is the activity/inactivity distinction "illusory" as you claim? Seems pretty basic. A 5 year old can tell you the difference.
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Chemerinsky belief: If there is a substantial effect on interstate commerce, Congress may regulate economic activity.
I disagree. A claim that inactivity is activity is indefinite and dangerous. Everyone experiences weather. May the government compel us to insure against it? Lopez will be replaced.
I don't really think anyone is really against health insurance...they're just opposed to paying for it. Those who do not carry insurance get their emergency health care from our hospital emergency rooms whether they ever pay the bill for those services or not. So for all intents and purposes this is already defacto (although ridiculously expensive and inefficent) health insurance and many pay nothing for. And I think that is the real issue.
The 16th Amendment allows a direct tax on wages, salaries, commissions, etc. without apportionment. The individual mandate penalty is imposed and collected under the Internal Revenue Code, and people must report it on their tax returns as an addition to income tax liability. The statutory label of "penalty" doesn't matter. The constitutionality of a tax law depends on its practical operation, not the precise form of words used to describe it.
It's interesting how people will pull out everything to oppose this bill. From a social stand point health insurance for everybody would be very productive. This bill will likely help dramatically reduce the amount of people that are uninsured. A society will be judged by how capable it's members are to have access to things such as healthcare and jobs. Therefore, the social aspects of this bill should be on an equal level with the economic ones
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Excellent article. However, I believe this goes further into our country's history than just activist judicial rulings of the New Deal era back to Federalists and anti-Federalists that prompted our Bill of Rights. Our rights are being eroded on a daily basis. States rights are being eroded. We are a Republic not a pure Democracy for fundamental reasons. The "ripple" principle is an exercise in bending the truth to fit a desired outcome. Tax and give benefits to fund a social program but not force individuals into commerce. To do otherwise is a slippery slope towards full control over our lives
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We have to buy auto insurance, whats the difference? Oh, its the state, EVERY state mandating we buy auto insurance. Again, whats the difference. All this is, is a red herring. Those who are against health care reform are looking for ways to defeat it. The right has never ever supported health care reform and they never will. First Social Security was going to end life as we knew it, then medicare, medicaid, and now health care reform. Its all the same old regurgitated lies. Who cares if two thirds of our bankruptcies are caused by health care bills, who cares if 4,500 people a year die due to lack of health care. Who cares if one sickness or surgery bankrupts the majority of the country. Who cares, not the right.
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The action/inaction distinction is a paradigm from the classical legal thought era of 19th century legal practice, it has in large part come to be viewed as utterly ridiculous. Choosing not to act and acting are no different. I could easily say after running into a vehicle that it is not my fault because I did not act by not pressing on the brake. Clearly, no one would buy that argument. The reason no one would buy that argument is because my lack of action hurt someone else. This is the essence of healthcare reform, individuals failure to get health insurance hurts many others by raising healthcare costs for all of us. Rather it is constitutional or not with the current SCOTUS depends on rather or not it is good for big business.
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To say the individual mandate is constitutional because it will enormously impact interstate commerce is to put the cart before the horse. Even if you understand the Commerce Clause in the broadest possible terms--that the federal government has the power to regulate virtually every extant commercial activity under the sun--this by no means implies that the government can FORCE commerce between private citizens, which it shall THEN regulate. Whatever the court's ruling in Gonzales v. Raich and other cases affirming a broad interpretation of the Commerce Clause, the activities under consideration had already existed, and not at the behest of the (federal) government.
Given the space limits, pardon any t00 succinct responses:
- The size of the market in dollar terms cannot grant Congress the power to regulate it by any means. The drug market is huge, but Congress could not attempt to regulate it by prohibiting anyone from talking about drugs. This would be a First Amendment violation, but the analysis would be similar. A right is an immunity to a power and citizens are immune from a power not granted.
- Cost-shifting is not inevitable. Here are ways to avoid cost-shifting: 1) be wealthy; 2) take out a loan; 3) borrow money from family members; 4) receive charity from a church; 5) pay in installments; 6) receive charitable care from the hospital itself. All of these were quite common at one point.
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Right on. Let's hope there are enough votes to outmatch Alito and Thomas. Come to think of it, Clarence Thomas should excuse himself from the case with his wife being a lobbyist for the insurance industry.
Legally, I find Prof. Chemerinsky's argument persuasive. Another way to put it might be to ask whether Congress could raise taxes on everyone in the country and then give a deduction or a refund to those who purchased insurance. As a constitutional question, I think such action would be allowed. This is just another way of putting Prof. C's argument that not buying insurance is acting -- it's choosing to self-insure, just as standing motionless as someone chokes is an action -- it's choosing not to help. Libertarians are right though that this bill is constitutionally legal bc modern jprudence gives Congress discretion
I do appreciate Mr. Burrus' point that taxing and then refunding would have really upset people.
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TRICARE uses govt negotiated contracts with private ins companies. Reimbursement rates are tied to Medicare. Govt subsidizes and enrollees pay a reduced premium. By expanding and having employers pay what they are paying now for their company health plans (actually could be much less due to size) into the fund, the system may be cost-neutral, keep private ins comapnies but make it more competitive, and make health insurance affordable to everyone.
The individual mandate is just one aspect of ACA. Even if the court stikes it, the rest of the act remains. Bottom line, healthcare in the US is broken. The percentage of our economy are stated above. Healthcare is the #1 cause of personal bankruptcy in this country. That's inexcusable. ACA may not be the perfect solution. Its emphasis on wellness, fraud reduction, and recordkeeping are key to reducing costs. Hopefully tort reform can be added. I believe a better solution would be to use a system such as TRICARE as the base. (see next post for more)
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I have to be honest, it is perfectly clear that the Commerce Clause has long ago been twisted into an unrecognizable form and now encompasses whatever the Supreme Court says it does. Reasoned arguments aside, the central issue has nothing to do with whether it is, in fact, constitutional, but whether the Supreme Court, a Federal Institution, wishes to increase the power of the Federal Government, and, coincidentally, its own.
I find it almost laughable how many of those who trash the Constitution in this way, look to the Constitution on other occasions and attempt to use it as a reference to protect their freedoms. It's you that ripped it up into little pieces.
Healthcare should not be about commerce in the first place. It is sad that we are the only industrialized nation that does not have a national healthcare system. Long ago other countries figured out that it is a bad idea to build in a profit motive where people's lives are on the line.
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