Health Care Deform Runs Afoul of the Constitution

Illegal Health Reform

By David B. Rivkin Jr. and Lee A. Casey
Saturday, August 22, 2009

President Obama has called for a serious and reasoned debate about his plans to overhaul the health-care system. Any such debate must include the question of whether it is constitutional for the federal government to adopt and implement the president’s proposals. Consider one element known as the “individual mandate,” which would require every American to have health insurance, if not through an employer then by individual purchase. This requirement would particularly affect young adults, who often choose to save the expense and go without coverage. Without the young to subsidize the old, a comprehensive national health system will not work. But can Congress require every American to buy health insurance?

In short, no. The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it.

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.

This leaves mandate supporters with few palatable options. Congress could attempt to condition some federal benefit on the acquisition of insurance. States, for example, usually condition issuance of a car registration on proof of automobile insurance, or on a sizable payment into an uninsured motorist fund. Even this, however, cannot achieve universal health coverage. No federal program or entitlement applies to the entire population, and it is difficult to conceive of a “benefit” that some part of the population would not choose to eschew.

The other obvious alternative is to use Congress’s power to tax and spend. In an effort, perhaps, to anchor this mandate in that power, the Senate version of the individual mandate envisions that failure to comply would be met with a penalty, to be collected by the IRS. This arrangement, however, is not constitutional either.

Like the commerce power, the power to tax gives the federal government vast authority over the public, and it is well settled that Congress can impose a tax for regulatory rather than purely revenue-raising purposes. Yet Congress cannot use its power to tax solely as a means of controlling conduct that it could not otherwise reach through the commerce clause or any other constitutional provision. In the 1922 case Bailey v. Drexel Furniture, the Supreme Court ruled that Congress could not impose a “tax” to penalize conduct (the utilization of child labor) it could not also regulate under the commerce clause. Although the court’s interpretation of the commerce power’s breadth has changed since that time, it has not repudiated the fundamental principle that Congress cannot use a tax to regulate conduct that is otherwise indisputably beyond its regulatory power.

Of course, these constitutional impediments can be avoided if Congress is willing to raise corporate and/or income taxes enough to fund fully a new national health system. Absent this politically dangerous — and therefore unlikely — scenario, advocates of universal health coverage must accept that Congress’s power, like that of the other branches, has limits. These limits apply regardless of how important the issue may be, and neither Congress nor the president can take constitutional short cuts. The genius of our system is that, no matter how convinced our elected officials may be that certain measures are in the public interest, their goals can be accomplished only in accord with the powers and processes the Constitution mandates, processes that inevitably make them accountable to the American people.

The writers are partners in the D.C. office of Baker Hostetler LLP and served in the Justice Department under presidents Ronald Reagan and George H.W. Bush.

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7 Comments on “Health Care Deform Runs Afoul of the Constitution”

  1. teach5 Says:

    I would comment on this, but I got all wee-wee’d up just reading about it…what a classy president we have, no? (This is from Powerling.)

    “Wee-Weed Up”: An Explanation
    Share Post Print
    August 21, 2009 Posted by John at 7:48 PM

    In his press briefing today, Robert Gibbs was asked what President Obama was talking about when he referred to Washington being “wee-weed up.” I’m not sure the exchange was either very illuminating or very edifying, but here it is:

    QUESTION: Robert, can you shed any more light — you mentioned a couple of days ago that there might be some events during the scheduled vacation, some conference calls (OFF-MIKE) and, second part, what is “wee-weed up”?

    GIBBS: I don’t know if I should do that from the podium. It’s a phrase I use, but I’m…

    QUESTION: (OFF-MIKE) [Can you give us a] demonstration?

    GIBBS: Well, I was going to have Bill do that, but, yes, let’s do this in — in a way that is family friendly. I think wee-weed up is when people just get all nervous for no particular reason, when they — look, I think the way the president used it was — and I’ve talked to a few of you guys about this — in August of 2007, right, the rap on the president and the campaign was, they can’t possibly — well, first of all, they’re doing poorly in Iowa. They can’t possibly win the nomination, let alone the presidency, right? So I’ll leave those predictions aside.

    • Mrs. Bulldog and I were discussing that the other day and came to the conclusion that Obama was using a euphemism for “pissing in their pants.”


    • az_conservative Says:

      Does Obama surround himself with idiots on purpose, or does he think Biden and Gibbs,, are “intellectual elites” (you know, like him)?

      • tgusa Says:

        The media portrays these people as cooler than cool, but haven’t you noticed that in reality they are the dork squad? Reaaly dorky, revenge of the nerds dorky.

        How many times do you suppose Biden got trash canned in high school for saying something stupid or offensive? Betcha it was a lot.

        • az_conservative Says:

          I’d like to see him trash canned now. He says a lot more stupid things as veep than he probably ever did in HS.

          And these are the people running the country. We are so screwed.

  2. teach5 Says:

    sorry–meant Powerline-duh!

  3. “The policy of the American government is to leave thier citizens free, neither restraining nor aiding them in thier pursuits.” Thomas Jefferson 1787

    I could not say it any better than one of our founding fathers. I would like to say that the supreme court of the U.S. has been in a slumbering recess since the “New Deal” and must be awakened to thier primary duty, protecting our Constitution. I hope everyone in Washington D.C. is getting “wee wee’d up” as “We the People” are becoming more engaged. “We the People” must give our consent to be governed and I for one am withdrawing my consent from these perverse, incompetent, immoral, self serving, disrespectors of our constitution.

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