The Constitutionality of the current Health Care proposal

    On Saturday, the Washington Post ran an op-ed by attorneys David Rivkin and Lee Casey that challenged the constitutionality of the current health care reform proposals.  The authors conclude that requiring each American to purchase health insurance would violate the Commerce Clause.  In support of this argument, the authors review current Supreme Court case law on the Commerce Clause, stating:

Although the Supreme Court has interpreted Congress's commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases. In Wickard v. Filburn (1942), the court upheld a federal law regulating the national wheat markets. The law was drawn so broadly that wheat grown for consumption on individual farms also was regulated. Even though this rule reached purely local (rather than interstate) activity, the court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce, and so was within Congress's reach.

The court reaffirmed this rationale in 2005 in Gonzales v. Raich, when it validated Congress's authority to regulate the home cultivation of marijuana for personal use. In doing so, however, the justices emphasized that -- as in the wheat case -- "the activities regulated by the [Controlled Substances Act] are quintessentially economic." That simply would not be true with regard to an individual health insurance mandate.

The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the "production, distribution or consumption of commodities," but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.

    As expected, these passages generated a response in the blogsphere.  Jonathan Adler of the Volokh Conspiracy states:

While I agree that the recent commerce clause cases hold that Congress may not regulate noneconomic activity, as such, they also state that Congress may reach otherwise unregulable conduct as part of an overarching regulatory scheme, where the regulation of such conduct is necessary and proper to the success of such scheme. In this case, the overall scheme would involve the regulation of "commerce" as the Supreme Court has defined it for several decades, as it would involve the regulation of health care markets. And the success of such a regulatory scheme would depend upon requiring all to participate.

Jack Balkin of Balkinization and Calvin Massey of the Faculty Lounge* are similarly unconvinced.  

    After reflecting on the case law, I agree with the Adler/Massey/Balkin formulation for several reasons. First, I think that Professor Adler correctly asserts that in Gonzales v. Raich, the Court made clear that the Commerce Power extends to the power to regulate markets.  Justice Stevens stated, "[W]hen a general regulatory scheme bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence."  The opinion goes on to say, "[W]e have no difficulty concluding that Congress had a rational basis for beleiving that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the [Controlled Substances Act].  These words seem to leave little to interpretation.  In fact, in dissent, Justice O'Connor interpreted the majority's opinion in the same manner.  Thus, the regulatory scheme argument seems logical and sound. 

    Second, Rivkin and Casey may be overselling the non-economic quality of the decision not to purchase health care.  While Rivkin and Casey are clearly well-versed in the relevant cases, it appears that some critical portions of those cases are omitted from their reasoning.  For instance, Lopez and Morrison do stand for the proposition that the Congress should use its Commerce Clause power primarily to regulate economic activity.  However, the authors mention, but seem to discount, the breadth of the definition of "economic" provided in the Gonzales case.  In her dissent, Justice O'Connor stated, "The Court's definition of economic activity is breathtaking.  It defines as economic any activity involving the production, distrubution, and consumption of commodities . . . [T]he Court's definition of economic activity for purposes of Commerce Clause jurisprudence threatens to sweep all of productive human activity into federal reach." Thus, after Gonzales, we still have a Commerce Clause jurisprudence that favors economic activity.   However, as pointed out by Justice O'Connor's dissent, the definition of economic is now so broad that the number of activities coming within its ambit has been increased, rather than decreased.  Since health insurance is certainly a commodity, it stands to reason under our new, broader difinition, that Congress can regulate the "production, distribution, and consumption" of said commodity, even where a person may not wish to become a consumer.  In other words, if Congress can regulate the purchasing of goods, it should be able to regulate their non-purchase, as Professor Balkin suggests.  To suggest otherwise would not only invite a sort of tortured logic, but would overlook the spirit of cases such as Wickard, a spirit which was soundly reaffirmed by the Gonzales majority.  Thus, I believe an argument can be made that even the non-purchase is an economic act able to be regulated by Congress.

    Finally, it is worth noting that the Court's decision in Morrison is broader that Rivkin and Casey's analysis admits.  Though the Morrison court was careful to state that gender violence was not an economic activity, Chief Justice Rehnquist went on to state, ". . . we need not adopt a categorical rule against aggregating the affects of any non-economic activity . . ."  Here, the Court left an opening, realizing that a fact pattern could occur which might allow for the aggregation of non-economic activity.  Assuming (contrary to my prior paragraph) that a refusal to purchase health care is a non-economic decision and the regulatory argument does not work, the game might not be over.  An individual person's decision not to purchase healthcare might not be regulable on its own.  But in the aggregate, that person's choice would obviously affect the interstate healthcare market.   Due to the strong, strong connection between the refusal to purchase health care and interstate commerce (something sorely lacking in both Lopez and Morrison), if there were a case for arguing for non-economic aggregation, this would seem to be a perfect test-case.  

    We will keep you posted of any further developments on this issue. 

NLS    

* Full disclosure:  I guest blog from time to time at the Faculty Lounge, where Prof. Massey is a featured blogger.

UPDATE (9/3/09) - After posting this, I was alerted to a response to Rivkin and Casey by Mark Hall, Professor of Law and Health at Wake Forest University.  Professor Hall is a member of the O'Neill Institute for National and Global Health Law at Georgetown University Law Center.  Professor Hall agrees that the individual mandate is constitutional for two essential reasons.  First, he asserts that the law is within Congress' commerce power, and even if this were not so, since the mandate will be enforced through the taxing and spending power, it is nevertheless constitutional. Second, Professor Hall argues that when individual rights are discussed, the Court is usually discussing fundamental rights. However, as he notes, "there is no fundamental right to be uninsured."   Professor Hall has also authored a full piece on the subject.  Please add these papers to your reading list on this topic.