Constitutional Challenges to Healthcare Reform, Part 1
There’s lots of chatter out there about legal challenges to our new health reform law. On Tuesday, before the ink from President Obama’s signature on H.R. 3590 was dry, 13 states’ attorneys general filed suit in the U.S. District Court for the Northern District of Florida, in Pensacola.
As I wrote a while back, there are two categories of possible constitutional challenges to the individual mandate. You can argue that the federal government does not have the power to impose it; and you can argue that the mandate violates individuals’ constitutional rights.
There aren’t many constitutional rights in play here. There is no recognized right to be uninsured. Nor, more generally, is there a right to be let alone. And in situations where the law would impinge on individuals’ rights that are recognized, the available remedy in court is to carve out specific exceptions in the law “as applied” to those individuals, rather than to strike down the law altogether.
The Affordable Care Act (ACA) is quite careful to provide exemptions from the mandate to several categories of people: those with “religious conscience” objections, illegal immigrants, incarcerated persons, people who can’t afford coverage (because a minimal plan would cost more than 8% of household income), earners whose income is below the tax-filing threshold, Indian tribes, people with only short gaps in coverage, and people with other qualifying hardships to be specified by HHS regulations. Due process does guarantee, in some sense, the “fundamental fairness” of the law. With all those exemptions, there just aren’t going to be many people for whom the mandate is fundamentally unfair.
So the real action here is in the argument that Congress has exceeded its constitutional authority. The relevant powers are the power to regulate commerce among the states and the power to levy taxes. Of these, it’s the commerce power that is most vulnerable to challenge. That is, if the ACA’s individual mandate is imposed by Congress under its authority to regulate commerce, there’s a reasonable case to be made that the mandate exceeds that authority. But even if it does, the taxing power is more than adequate authority to impose the mandate.
I’ll say more about the commerce and taxation arguments in part 2. Stay tuned….
Comments
5 Responses to “Constitutional Challenges to Healthcare Reform, Part 1”
Leave a Reply
About Me
- I write this blog.
-
My twitter feed:
I believe that Sonny’s argument is Tenth Amendment. For a Tenth Amendment argument to succeed doesn’t the state need to show that in 1789 the disputed power belonged solely to the state? In this case health insurance has only in very modern times been provided by the state, thus this argument doesn’t leave the ground. 12(b)(6).
I first read about this on Brad Delong’s site:
http://delong.typepad.com/sdj/2010/03/randy-barnett-stupidest-man-alive-for-march-30-2010.html
Apparently, the Second Congress passed a law in 1792 that required all men between the ages 18 and 45 to purchase muskets with their own money. George Washington enforced this provision to suppress the Whiskey Rebellion in 1794.
A law like this makes it pretty hard to argue that forcing people to engage in commerce is unprecedented, or conflicts with the founders’ intent, or is outside of the powers of congress. I mean this was George Washington, most respected founder and first president.
George Washington was a Marxist.
Hmmmm. Not sure if I should respond to comments made on April 1st. But thanks for making them.
I will say that I don’t think Randy Barnett is stupid. I think he takes the totally viable position that we should presume that Congress does not have the power to do something if there’s any doubt about whether the Constitution authorizes it. It’s a moderate libertarian position, with some natural rights flavorings. I disagree completely with Barnett’s conclusion and much of the theory that gets him to it. But stupid he is not.
I don’t know the whole backstory of the 1792 law, but on the face of it, it implicates a different power of Congress than health reform does, and therefore the comparison is not all that valuable for constitutional law purposes. Health reform was enacted under the taxation and/or commerce powers. The 1792 law would seemingly fall under the various provisions giving Congress authority to raise, support, and regulate armies. The power to regulate interstate commerce is much more circumscribed than the power to raise & support armies.
Anyway, more on the substance of the commerce clause argument coming soon….
We are lawyers. Out business is creating doubt. If it is a totally viable position that when there is doubt the constitution does not authorize congress to act then congress has very little power. The neoconstitutionalists would be more credible if their limited government theories applied when their guys were the majority.