[UPDATED 1:05 pm] Yesterday, Bitohistory posted a C-Span interview with law Professor Timothy Jost, from Washington and Lee University, about the constitutional challenges to the mandates in the Health Care Reform legislation. It is well worth the 29 minutes of your time, especially if you run into any trolls who will use this to dispute the legality of the legislation based on States’ Rights.
I am posting other written legal responses from these sites:
With the historic health care reform bill not yet signed into law, opponents are already preparing to take the predictable next step to challenge the measure in court as unconstitutional. The litigation promised by attorneys general in 11 states will give opponents a new forum to register their disagreements, but the legal arguments appear to be clearly contradicted by Supreme Court precedents supporting Congress’s regulatory and taxing powers over interstate commerce.
The attorneys general, all of them Republicans, also plan to argue that the measure violates states’ sovereignty. Virginia has already passed and other states are considering legislation aimed at blocking the federal law from taking effect within their borders. On that score, the Constitution itself could hardly be clearer. Under the Supremacy Clause (Art. VI), the Constitution and “the laws of the United States” are “the supreme law of the land,” any state laws to the contrary notwithstanding.
The opponents correctly note that the bill’s central provision — a tax-based mandate for everyone to purchase health insurance — is unprecedented, but the lack of a precedent is not constitutionally fatal. Before passage of the federal wage and hour law in 1938, it was also unprecedented for Congress to require all employers to pay a minimum wage and overtime to all employees. But the Supreme Court upheld the law in a unanimous decision three years later (United States v. Darby Lumber Co., 1941), and hardly anyone doubts its constitutionality today.
The legal experts defending the constitutionality of a health insurance mandate start with a famous Supreme Court decision two years later that rejected a farmer’s attack on a federal agriculture quota limiting the amount of wheat he grew for his own consumption. In Wickard v. Filburn (1943), the court unanimously said that Congress’s power over interstate commerce extends even that far. The farmer’s “trivial” contribution to the demand for wheat was “not enough to remove him from the scope of federal regulation,” Justice Robert H. Jackson explained, “where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.”
Opponents of the health insurance mandate criticize the decision. Andrew Napolitano, legal analyst for Fox News and a former state court judge in New Jersey, calls the ruling “notoriously tendentious.” In an op-ed in the Wall Street Journal in September, Napolitano argued in any event that health services is neither commerce nor interstate. “In almost all instances, the delivery of medical services occurs in one place and does not move across interstate lines,” Napolitano wrote. In addition, “one goes to a physician not to engage in commercial activity, as the Framers of the Constitution understood, but to improve one’s health.”
Anyone who has recently been billed for medical or hospital services will understand that commercial activity is taking place. As for Napolitano’s narrow definition of interstate commerce, the Supreme Court followed that approach in the early 20th century, but has taken a broader view almost without exception since the New Deal.
True, under Chief Justice William H. Rehnquist, the Supreme Court twice in the 1990s invoked a narrower definition of interstate commerce to strike down federal laws that banned possession of guns near schools (United States v. Lopez, 1995) and that created a federal cause of action for victims of gender-motivated violence (United States v. Morrison, 2000). Five years later, however, the court returned to a broader view in ruling that federal drug law takes precedence over state laws allowing medical use of marijuana. As Justice John Paul Stevens explained in Gonzales v. Raich (2005), home-grown marijuana, like home-grown wheat, could have a “substantial effect on supply and demand in the national market for that commodity.”
Opponents of the health insurance mandate also argue that the measure will effectively require some people to subsidize insurance for others. Supporters counter that such subsidies are the very nature of an insurance pool. Regardless, the Supreme Court in Wickard v. Filburn answers the argument. Any regulation, Justice Jackson explained, imposes a cost on the regulated in order to benefit the broader public good. Those conflicts, he said, “are wisely left under our system to resolution by the Congress,” not the courts.
The opponents look to the Tenth Amendment for their state sovereignty arguments, with its language reserving to the states all powers not delegated to the national government. The Supreme Court once famously described the amendment as a mere “truism.” In any event, if the law is a valid exercise of Congress’s commerce power, the Tenth Amendment is satisfied. And Congress’s power to enact the measure is even clearer if viewed as a tax. The law actually operates by imposing an excise tax on anyone who does not have health insurance. And Congress’s taxing power is almost unbounded — even if the purpose is not to raise revenue, but to regulate conduct.
Some constitutional law experts see some validity in the opponents’ arguments — including Randy Barnett, a libertarian professor at Georgetown University Law Center and the losing lawyer in the medical marijuana case. Most other legal experts see the opponents’ attack as implausible, bordering on the frivolous. “I don’t think the vote would be close,” Timothy Jost, a health law expert at Washington & Lee University (no relation), told the Washington Times last fall.
If conservatives can’t find a way to repeal the bill in Congress, they will likely encourage the 36 states that are already considering suing the federal government for imposing an individual mandate, to proceed with their legal challenges. Today, Florida’s attorney general confirmed that he will “file a lawsuit with nine other state attorneys general opposing the health care legislation passed by Congress” and Virginia’s Attorney General Ken Cuccinelli has promised to file suit as soon as the ink dries. Virginia and Idaho have even passed legislation allowing their citizens to opt out of the individual mandate and Arizona is considering the question on its ballot in November.
But these lawsuits seem as frivolous as the tort cases Republicans rally against. As Professor Timothy Jost of Washington & Lee University School of Law explained this morning on Washington Journal, “under the constitution as it has been interpreted by the Supreme Court — and that is really our constitution. Everyone has their own interpretation, but constitutional law is made by the Supreme Court — over the last 80 years, I do not see any serious problem with this legislation, and Congress did not either.” Jost noted that the individual requirement, which does not apply to anyone who is under the filing limit of $12,000 for individuals or $16,000 for couples or levy a criminal penalty for those who go without insurance — will likely stand up to a constitutional challenge:
JOST: Well, what the Virginia law says is, ‘nobody can make our citizens buy health insurance.’ They can say what they want to. But under the supremacy clause, a state cannot tell the federal government what to do…the Commerce Clause says Congress has the authority to regulate commerce among the states. And since the 1930’s, that power has been interpreted very broadly….basically, the law now is that if there is any kind of economic activity involved, Congress has the power to regulate it. And of course Congress does. We have lots of federal laws, regulating all sorts of economic activity. The decision of when to buy insurance — do I buy it now when I’m healthy or do I buy it once I’m in not ambulance on the way to the hospital — is an economic decision and Congress clearly has the power to regulate it. And once Congress has the power to do something under the supremacy clause, its laws are supreme to the laws of the states and the tenth amendment only provides that states retain powers that are not granted to Congress.
Reply from a Commenter:
“Jost is 100% correct of course and the Republicans know it. The doctrine of Federal Preemption means that any state statute which conflicts with the health care bill will not be worth the paper it is written on.
The argument that regulating insurance is somehow not economic activity to fall under the Commerce Power is laughable.
Even allowing for the extreme pro-corporate tilt of the Roberts Court, there is just no way they are going to overturn 80 years of legal precedent and go back to the Lochner Era by saying that this is not within Congressional authority under the Commerce clause.”
Virginia Attorney General Ken Cuccinelli acknowledges that normally, federal laws trump state laws, but he contends that is not the case with the health care overhaul.
However, a wide variety of experts and scholars across the political spectrum say opt-out state laws are a political exercise with no legal effect.
“The notion that a state can just choose to opt out is just preposterous,” says former Reagan administration Solicitor General Charles Fried. “One is left speechless by the absurdity of it.”
Fried says similar attempts at “so-called nullification” led to the Civil War.
Conservative scholar and former federal appeals court Judge Michael McConnell agrees that states’ opt-out laws are legally meaningless.
“If the mandate is constitutional,” he says, “then the state statutes are pre-empted” — they are trumped by federal law. And “if the federal law is unconstitutional, the state laws are unnecessary.”
Washington and Lee law professor Tim Jost calls the state opt-out laws “political theater” — an expression by the states that they don’t like the federal law, but an expression that has little, if any, legal effect.
More serious, however, are the direct legal challenges to the mandate. Jost says it’s hard to think of a situation before in which “Congress has required people to purchase a product in the commercial market.”
On the other hand, federal mandates are nothing new. Fried defended many of those mandates when he served as the Reagan administration’s advocate in the Supreme Court.
“We have tons of laws that impose obligations on people,” he said, “and some people would rather not participate, starting with the Internal Revenue code” — or the draft in wartime, or Social Security, or environmental restrictions on the states.
None of these, of course, is exactly on point. But without a precedent that is exactly on point, there is room for opponents of the health care overhaul to maneuver in court.
Lawyer David Rivkin represents Florida and 11 other states that plan to bring legal challenges to provisions of the law. In addition to the mandate for buying insurance, he says the statute co-opts state authority to an “unprecedented” degree by telling state officials to set up insurance exchanges and regulate insurance companies according to federal standards.
The Obama administration is taking nothing for granted. It is already setting up a cadre of lawyers to defend the health care overhaul.
The last word will come, of course, from neither lawyers nor politicians. It will come from the U.S. Supreme Court — a court that has moved dramatically to the right in the past few years.
Tomithy S. Jost, writing in the New England Journal Of Medicine:
On February 1, the Virginia Senate passed a bill stating that “No resident of this Commonwealth . . . shall be required to obtain or maintain a policy of individual insurance coverage.” In considering this legislation, Virginia joins numerous other states with pending legislation aimed at limiting, changing, or opposing national health care reforms. What is going on here?
Whereas states generally adopt laws to achieve a legal effect, nullification laws are pure political theater. On its face, the Virginia bill exempts residents of the Commonwealth from having to comply with a law requiring the purchase of health insurance. Although the bill is phrased in the passive voice, its intent is clearly to block the implementation of a federal mandate requiring all individuals to carry health insurance. But achieving this aim is constitutionally impossible.
The Supremacy Clause of the United States Constitution (article VI, clause 2) states, “This Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Indeed, one of the primary reasons for adopting our Constitution in place of the Articles of Confederation was to establish the supremacy of national over state law. Our only civil war was fought over the question of whether national or state law was ultimately supreme.
Within the past 60 years, the most important confrontation between federal law and states’ rights concerned school desegregation. Faced with federal law commanding the desegregation of its schools, Arkansas amended its constitution to prohibit integration. In Cooper v. Aaron (1958), the only Supreme Court opinion I know of that was signed individually by each of the Court’s nine justices, the Court decisively reaffirmed the supremacy of federal law and rejected the state’s claimed right to nullification. More recently, a number of federal courts have rejected claims that a state could refuse Medicaid coverage of abortions in cases of rape and incest after the Hyde amendment (which originally prohibited the use of federal funds for coverage of abortion except when the mother’s life was at risk) was changed to permit federal funding for abortions under these circumstances.2 These decisions held that state constitutional provisions must yield even to federal regulations. State law cannot nullify federal law. This principle is simply beyond debate, and state legislators, many of them lawyers, know that.
I believe this is political theater, but that sounds too playful. What is unconscionable is the waste of states’ resources of money and time. Anyone can file a lawsuit. This is as frivolous as Orly Taitz’s birther crap, but the media will focus on these lawsuits as they did on her nonsense. I can only hope—and it is likely—that these suits will be thrown out of the courts.
ARGUMENTS IN FAVOR OF THE VALIDITY OF THE LAWSUITS:
The stronger argument in the arsenal of the AGs relates to the Commerce Clause, the section of the Constitution that empowers Congress to regulate interstate commerce. The AGs focus on the provision of the bill that requires almost all Americans to obtain health insurance. They argue that imposing a penalty on people merely for declining to buy insurance is outside the scope of Congress’s power under the Commerce Clause. ..
This argument isn’t, as some reform supporters may wish to see it, merely a bizarre and desperate concoction of the far-right wing…. Over the last six months, it’s been embraced by several respected conservative legal scholars. And more importantly, an emerging jurisprudence from the conservative court does show a willingness to limit the scope of the Commerce Clause.
Last September, David Rivkin and Lee Casey, former Justice Department lawyers during the Reagan and Bush 41 administrations who played prominent roles in support of the Bush 43 administration’s detention policies, noted in a Wall Street Journal op-ed that in a 1995 case, U.S. v. Lopez, the Supreme Court invalidated a law that made it a crime simply to possess a gun near a school, holding that the law did not “regulate any economic activity and did not contain any requirement that the possession of a gun have any connection to past interstate activity or a predictable impact on future commercial activity.” Likewise, Rivkin and Casey wrote, a health-care mandate also wouldn’t regulate any “activity.” “Simply being an American would trigger it.”
Randy Barnett, a professor of constitutional law at Georgetown Law School, agrees. “The individual mandate extends the commerce clause’s power beyond economic activity, to economic inactivity. That is unprecedented,” he wrote in a Washington Post op-ed that appeared this weekend. “Regulating the auto industry or paying “cash for clunkers” is one thing; making everyone buy a Chevy is quite another.”
A July 2009 paper (pdf) for the conservative Federalist Society by Peter Urbanowicz and Dennis G. Smith, two former HHS officials, took a similar view. “While most health care insurers and health care providers may engage in interstate commerce and may be regulated accordingly under the Commerce Clause, it is a different matter to find a basis for imposing Commerce Clause related regulation on an individual who chooses not to undertake a commercial transaction,” they wrote.
ARGUMENTS AGAINST THE VALIDITY OF THE LAWSUITS:
But this view is by no means widespread, even on the right. Numerous constitutional scholars say the mandate is well within the scope of what the court has defined as commercial activity — pointing to the 2005 case, Gonzales v. Raich, in which the Supreme Court found that the federal government could criminalize the growth and possession of medical marijuana, even when it was limited to within a single state, on the grounds that doing so was part of an effort to control the interstate drug trade.
Erwin Chemerinsky, the dean of the UC Irvine School of Law, noted in an op-ed in Politico last October that health-care coverage is far more closely related to commercial activity, and the national economy, than is the private growth of marijuana. “In 2007, health care expenditures amounted to $2.2 trillion, or $7,421 per person, and accounted for 16.2 percent of the gross domestic product,” he wrote. And, he argued, the Supreme Court has never said that only people who are themselves engaged in commercial activity can be regulated under the commerce clause. For instance, the court found that the Commerce Clause could be used to require southern restaurants and hotels to serve blacks, even though what was at issue was their refusal to engage in commercial activity.
Jack Balkin, a constitutional law professor at Yale Law School, extends that argument. In a recent blog post, he notes that in the Raich case, Justice Scalia found that Congress can use the Commerce Clause to regulate, as Balkin put it, “even non-economic activities if it believes that this is necessary to make its regulation of interstate commerce effective” (itals TPM’s). People who don’t buy health insurance, Balkin argues, aren’t simply “doing nothing,” as Rivkin, Barnett et al. claim. These people pass on their health-care costs by going to the emergency room, or buying over-the-counter cures. “All these activities are economic, and they have a cumulative effect on interstate commerce,” writes Balkin.
Several respected conservative legal experts essentially agree that the court would have to radically break with past rulings to strike down the law. John McGinnis, a former Bush 41 administration Justice Department official and a past winner of an award from the Federalist Society, told TPMmuckraker that the court could rule in favor of the AGs only by taking a radical Originalist view of jurisprudence — one that all but ignores precedent. “I think the only person who shares [that view] is Justice Thomas.” said McGinnis, now a constitutional law scholar at Northwestern Law School. “It’s a very difficult argument to make under current precedent.”
Doug Kmiec, a former Reagan administration Justice Department official, and conservative legal scholar, echoes that view. “The idea that a regulatory requirement (whether to purchase insurance or to purchase a smoke alarm) violates the Constitution by exceeding the scope of the commerce power was rejected in the age when Robert Fulton’s steam ships were at the center of case controversy and the proposition has not gained validity with the passage into the 21st century,” Kmiec, now the Obama administration’s ambassador to Malta, told TPMmuckraker.
And Orin Kerr, a professor at George Washington Law School, who has served as a special counsel to Sen. John Cornyn (R-TX) and clerked for Justice Anthony Kennedy, likewise believes the bill is almost certain to pass muster. “I think it’s very very unlikely that the mandate would be struck down as unconstitutional,” Kerr told TPMmuckraker.
There’s another problem with the lawsuit. Many judges are often reluctant to hear a challenge to a law until it has actually gone into effect — what legal types call a “ripeness” issue. The individual mandate won’t go into effect until 2014 — by which time factors like the composition of the Supreme Court, and the underlying politics driving the lawsuit, may well have changed.
So what do these disagreements among experts mean for how the court is likely to rule? In short, how confident can we be that reform will survive the challenge?
Frederick Schauer, a constitutional law scholar at the University of Virginia, expresses what seems to be the most reliable view. He notes to TPMmuckraker that in the Lopez case, and in a subsequent 2000 case involving the Violence Against Women Act, the Supreme Court has held that there are limits on what constitutes commercial activity under the Commerce Clause — shifting from the “anything goes” approach that had predominated since the New Deal. Despite the subsequent medical marijuana ruling, Schauer says, those cases offer the “slightest glimmer” to opponents of the bill — but not much more than that. So twenty years ago, said Schauer, there would have been essentially no chance of the court striking down the legislation. Today, he says, “it’s a real long-shot,” but not completely out of the question.
There’s something else worth considering, though. The fears of reform supporters rest in part on the worry that the Supreme Court’s five conservative justices will simply ignore the relevant jurisprudence and use their authority to make a nakedly partisan ruling — as, many argue, they already did not so long ago.
That seems highly unlikely. Striking down health-care reform, despite the clear weight of evidence that it fits well within the scope of the Commerce Clause, would “be more aggressive than Bush v. Gore,” says Kermit Roosevelt, a constitutional law professor at the University of Pennsylvania Law School. “They’re probably not eager to do that again.”