OP-ED

Commerce Clause Challenges to Health Care Reform

The following article, forthcoming in U. Penn. L. Rev., pinpoints the strongest arguments for and against federal power under the Commerce Clause to mandate the purchase of health insurance:   http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1747189

Among the key points I make in defense of this federal law are:

1. The “commerce” in question is simply health insurance, and not the non-purchase of insurance as challengers have framed it.  Because “regulate” clearly allows both prohibitions and mandates of behavior, mandating purchase is lexically just as valid an application of the clause as is prohibiting purchase or mandating the sale of insurance.

2. Although existing precedent might allow a line to be drawn between economic activity and inactivity, there is no reason in principle or theory why such a line should be drawn in order to preserve state sovereignty.  Purchase mandates, after all, are as rare under state law as under federal law.

3. Challengers do not seriously dispute the constitutional validity of the ACA’s regulation of insurers or the economic necessity of the mandate in order for that regulation to be effective.  In fact, they essentially concede the mandate’s necessity by asking to strike the entire law if it is declared invalid.  Accordingly, the mandate would pass the tests for constitutional necessity articulated by at least seven of the Justices in the Comstock opinion last year, and might even pass the necessity test embraced by Justices Thomas and Scalia.

4. An important challenge, not yet clearly discussed by court opinions to date, is that the mandate does not, strictly speaking, simply “carry into execution” Congress’ other regulatory powers, but is the exercise of a distinct power.  However, both modern and historical precedents under the Necessary and Proper Clause are not limited narrowly to merely implementation measures.  Both Comstock and a series of decisions under the Postal Power are good examples to the contrary since they authorize independent federal powers that expand the range of purposes and measures permitted by express Congressional powers.

5. There is no coherent basis for declaring a purchase mandate to be constitutionally “improper,” and a categorical ban on regulating inactivity would contradict the implicit reasoning underlying several other established precedents — such as those upholding the draft and the Congressional subpoena power.   Also, federal eminent domain allows compelled transactions justified in part by the Necessary and Proper clause’s expansion of the commerce power, when applied, for instance, to citizen’s refusal to sell land for use in constructing highways, bridges, and canals.

6. Using the 10th Amendment to justify a categorical prohibition of purchase mandates (as Randy Barnett has argued) would be no more convincing than using the 9th or 5th Amendments (substantive due process).  Instead, such a move would, for the first time and contrary to precedent, make the 10th a protector of individual liberties rather than just federalism concerns, and would radically enforce an absolute right to economic liberty, regardless of level of legislative justification or judicial scrutiny (see point 9).

7. Slippery slope concerns are no greater here than for any other of a range of expansive federal powers.  Instead, the novelty of the mandate subjects it to greater political constraint, and so “parade of horribles” concerns may be even more unrealistic than similar settings where the Court has rejected them.

8. Grounding the mandate in the Necessary and Proper clause helps to confine its precedential effect by emphasizing it’s necessary role in the ACA’s particular regulatory scheme that, in other respects, clearly resides within the core of the conventional commerce power.  This essential supportive and interconnected role is not shared by free-standing mandates to purchase American cars or broccoli, for instance.

9. Counteracting imaginary slippery slope concerns about absurd hypothetical laws are the legitimate concerns about insurmountable barriers that a prohibition of purchase mandates would erect.  Forbidding Congress from any purchase mandate could cripple necessary efforts, for instance, to require preventive measures in the face of a massive pandemic that threatened tens of millions of lives.

This post originally appeared on Health Reform Watch, the web log of the Seton Hall University School of Law.

Mark A. Hall, J.D., is the Fred D. & Elizabeth L. Turnage Professor of Law at Wake Forest University School of Law. He is one of the nation’s leading scholars in the areas of health care law and policy and medical and bioethics and a contributor to Health Reform Watch.

Livongo’s Post Ad Banner 728*90

29
Leave a Reply

28 Comment threads
1 Thread replies
0 Followers
 
Most reacted comment
Hottest comment thread
13 Comment authors
LeenaJ DavisKneetatieniDennisJoe Buckle Recent comment authors
newest oldest most voted
J Davis
Guest
J Davis

Ignorance of the laws is not excuse. The US Government has the right granted by the US Constitution to make ” all laws necessary and proper for carrying into execution the forgoing Powers…referencing powers delineated in Sections 7 & 8…and all other Powers vested by the Constitution in the government of the US…READ the Constitution.
Others have said it and I reiterate…the government requires citizens to purchase a number of things…car insurance, pay taxes (to provide for the general defense and promote the general welfare); this provision is not outside of that power. Oh and BTW…stay healthy all your life.

Kneetatieni
Guest
Kneetatieni

Hello. And Bye.

Dennis
Guest
Dennis

Very interesting debate, thank you all. Does not the government mandate all sorts of things related to being a citizen. How about one MUST educate ones children -> MUST pay state & local taxes to (purchase) education, if not fines and jail for violation of income tax and child protective statutes. Or one MUST provide (purchase) for them. At the federal level one MUST (purchase) an ARMY or any line item in the federal budget, or face tax evasion sanctions. Here we are free until my freedom interferes with your freedom. I am not free to pay lower health care… Read more »

Mike MD
Guest
Mike MD

Yes Bobby – great example of why I prefer to remain unidentified, knowing full well however that it is very difficult to keep truly anonymous.
You’re a very busy blogger by the way. If I was into blogging I would probably want as many opportunities as possible to put out links to my pages.

DeterminedMD
Guest
DeterminedMD

In all sincerity, BobbyG, thank you for sharing that experience. That, for me, seems to validate why we use aliases, as MikeMD noted. As I shared in another thread, a poster who did not like my comments, which I freely admit were a bit harsh to the poster, found a way to contact me through the regular mail and write something that I felt was a bit threatening/intimidating, but I wrote this person back as they left a return address and told the individual so much was my reaction to their correspondence. This from someone I did not work with,… Read more »

BobbyG
Guest

@Joe – Thanks. I guess you can “choose” to not be a citizen. Or, being a “citizen,” you can choose to not engage in ANY of the activities comprising such, so that your “being” would be of zero impact to society, according you zero obligation to society. Look, I’m no big fan of the way the PPACA ended up, i.e., a hyper-complex re-jiggering of the (still mostly for-profit actuarial risk model) health insurance industry. @Mike MD, I have had the same web address for 15 years. My screen name links straight back to my full identity and location. Maybe that… Read more »

Joe Buckle
Guest

Margalit Gur-Arie wrote :”There is no precedent to government “mandating purchase of anything by virtue of just being a citizen of this country.” ___ BobbyG replied: Tell that to polluting corporate “persons” required to purchase commercial anti-pollution equipment (or other safety equipment). Corporations, recall (as recently reinforced yet again in “Citzens United” at SCOTUS), are “citizens.” BobbyG Corporations have a choice to either participate in a given sector of the economy or not participate. I can choose to open a coal mine, but, i’m obliged by federal law to abide by the applicable environmental regulations applied to the coal industry.… Read more »

Mike MD
Guest
Mike MD

No, you don’t get it. You missed the point entirely. It’s not who your are, it’s the risk you face from discovery of your comments. And also the point about “BobbyG” being just as much a non-identity such that your complaint rings hollow.

BobbyG
Guest

@Mike MD,
OK, I get it. I’m a “nobody” of no consequence because I’m not an MD. Consequently, my blogging is a waste of effort, because I have nothing to contribute to the health care issues debate.

Mike MD
Guest
Mike MD

Who is BobbyG? Do your patients, insurers, hospital administrators, employees, fellow community physicians, physican partners, etc. care about what you might be saying on an online blog? Mine do, therefore I remain anonymous so that I can speak my mind.

BobbyG
Guest

@”DeterminedMD” –
Actually, I have no need to hide behind (2?) anonymous non-linked screen names. I am fully, personally accountable accountable for anything I say.

DeterminedMD
Guest
DeterminedMD

Speaking of internet sites and advocating for the PPACA, read this link and amaze at the sheer hypocrisy of the advocates: http://washingtonexaminer.com/opinion/columnists/2011/01/obamacare-waivers-those-who-do-favors Yes, supporters and apologists will be quick to point out Michelle Malkin is a fierce Obama detractor, and some of her positions are so ridiculous to read, she does take away from any legitimate rebuttals to Obama. But, this column is stating factual information as to who is seeking waivers from participating in the legislation. This legislation, that is so wonderful and beneficial to the public, that so many unions and their members are literally fleeing to be… Read more »

Brad F
Guest
Brad F

Mike
congress can enact laws, yes, and sometimes they squeak through. However, like the 1099 issue of today, or this contentious episode:
http://www.youtube.com/watch?v=qre7DzEtxyc&feature=player_embedded#
If something borders on the absurd, truly rancors the populace, or has a significant impact on our lives, we will push back in all likelihood.
Politicians enjoy reelection parties.
Granted, you can cite examples in the converse, but I would like to think that if a broccoli law was proposed or passed, one night in the company with Jon Stewart or Bill O’Reilley, well, would put the kibosh on that tryst. Game over.
Brad

Mike MD
Guest
Mike MD

“One way to regulate that commerce is to prohibit it ( for instance, prohibiting the purchase of insurance doesn’t excludes pre-existing conditions” If you are going to sell someone insurance, you cannot sell them a policy that excludes pre-existing conditions. This is not prohibiting the purchase, only regulating what is sold. “A mandate is also a regulation. For instance, Congress can mandate that insurers sell insurance that covers people with health conditions. Therefore, there is nothing illogical in saying that a mandate to buy insurance is one possible way to regulate of commerce of insurance.” No, Congress has mandated that… Read more »

DeterminedMD
Guest
DeterminedMD

Sock Puppetry? Hey folks, go to Bobby G’s link per his name and try to decipher his site. Personally, I would like to put a sock in it!
The days of being nice and responding with pleasantries to rebuttals like his are gone. And, I am a maximized moderate and invested independent politically. Extremist rhetorics from both political spectrums annoy and disrupt those who are interested in resolutions, not just choir retorts!!!