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.

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29 replies »

  1. From John B to John A: Most of these health care parrnets would fall under heavy pressure and would either merge to form one central health care conglomerate or they would wither away due to the universal aspect of health care that Obama is trying to implement. Best believe that people would still continue to put their trust in the private health sector.

  2. 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.

  3. 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 premiums because x persons are free to show up at the hospital and not pay their bills, due to no insurance. Mr Hill has done an excellent job in explaining why correcting this is necessary and properly constitutional.

  4. 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.

  5. 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, but, as a colleague, I have to wonder if there could be repercussions down the road. Some people have egos I am surprised the planet can contain. And, as physicians, people can ruin your career if at not at least disrupt it significantly because the politics of medicine are as ruthless as those in DC.
    Hey, don’t believe me, just ask other doctors if what I offer is true or just overreaction.

  6. @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 puts me at “risk” — as it perhaps did during the Nevada Senate race when a Sharron Angle Tea-Bagger “Second Amendment Remedy ” clown sent me a pic of an automatic weapons arms and ammo cache, followed by the admonition “we’ll see how you feel when we come and bust your door down.”

  7. 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.
    If a corporation chooses not to participate in the coal industry, are they fined annually by the Govt for not participating in the coal related commerce?

  8. 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.

  9. @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.

  10. 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.

  11. @”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.

  12. 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 as far away from it! Now there is consistency and dedication to your leaders and their philosophies, eh?
    Again, the more that is exposed about the specifics to PPACA, the less sincere and invested Democraps are to the public they resent, er, represent!

  13. 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

  14. “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 IF health insurance is sold, it must cover people with health conditions. They don’t mandate anyone to sell it, and it is not logical to say they should mandate anyone to buy it.
    “Congress might, for instance, bar non-American cars from crossing state lines, or cars that aren’t stocked with broccoli…. but none of that actually happens because voters simply won’t let it happen. Why is a mandate to purchase products any less subject to voter control? Just the opposite: purchase mandates seem to get lots of political scrutiny.”
    Voters did not and will not have the opportunity to vote to repeal any absurdity. They can only vote to elect someone who might change the law, and that is exactly what they did last November. The absurdity is that you cannot see how the obsurd hypothetical laws to purchase broccoli are given as illustrations that the mandate is just as absurd. If congress did pass a law that everyone must buy vegetables, we could give as an example, to prove it absurd, the statement, “If this law stands, congress can do anything, even make people buy health insurance.”

  15. 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!!!

  16. Mark, I do understand prohibition to purchase and I do understand mandate to sell. I also understand that there is but a small step to include mandate to purchase. The question in my mind is whether we should take that small step.
    I believe the Court will probably find some rational basis for upholding the mandate, and indeed leave it to democracy to resolve the controversy. This doesn’t mean I have to like it, and your example of a pandemic threat is one reason why. The first small step is the hardest one. After that it gets easy.

  17. In response to various questions above:
    Ray: The remaining limits are: necessary to regulation of interstate commerce, and not violating any of the Bill of Rights.
    Marglit: Commerce clearly includes the purchase of insurance. One way to regulate that commerce is to prohibit it ( for instance, prohibiting the purchase of insurance doesn’t excludes pre-existing conditions), which is clearly allowed. 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.
    Brad: People worry that a mandate to purchase insurance could allow a mandate to purchase American cars or broccoli, or whatever. But you could argue the same for Congress’ existing power to regulate interstate transport. Congress might, for instance, bar non-American cars from crossing state lines, or cars that aren’t stocked with broccoli. Or equal absurdities are constitutionally possible simply under state law, but none of that actually happens because voters simply won’t let it happen. Why is a mandate to purchase products any less subject to voter control? Just the opposite: purchase mandates seem to get lots of political scrutiny.

  18. “There is no precedent to government mandating purchase of anything by virtue of just being a citizen of this country.”
    ___
    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.”

  19. Could someone help me with #7, ie, parse it out a bit. I dont comprehend meaning.
    Thanks
    Brad

  20. Hi Bobby, I will have to disagree with you here (on several counts).
    There is no precedent to government mandating purchase of anything by virtue of just being a citizen of this country. There was an example brought up here a while ago that cited the federal government requiring militia to show up with certain equipment, but even that outdated mandate was not for direct purchase (you could borrow or make your stuff).
    If you are not concerned with a slippery slope, please see Mr. Hall’s point #9, where in case of “threat” of a pandemic, government should be able to not only make you purchase something, but also force you to ingest it or inject it, or whatever. It didn’t take very long….
    As to the issue at hand, I would prefer that instead of this convoluted and dubious solution, government would just plain tax people to pay for universal health care. I am not too big on the goal justifies the means because goals change and means tend to become ingrained.
    I assume that this is were I severely diverge from Dr. D and MD as HELL and their opinions:-)
    BTW, I have had many lengthy comments exchanges in the past with both, and I am certain that they are very real, most likely very interesting people and probably good docs to boot. Being wildly conservative is not a sin.

  21. @MD as HELL-
    Straw man. The question goes to enumerated powers and their rational interpretation. The USAF is not textually authorized by the Constitution, which only specifies an Army and Navy. By “textualism” (Scalian) reasoning, it should still be the “U.S. Army Air Corps,” and the National Security Act of 1947 which established it as a separate DoD entity is “unconstitutional.” Whether you have to join it or not is irrelevant.
    Moreover, apropos of the actual point here, a polluting industry might claim that it cannot be forced under threat of federal legal/financial penalty to NOT engage in the “economic activity” that would comprise purchasing and installing pollution abatement technology. See how far that argument gets you.
    The assertion that you cannot be forced by law to NOT engage in an “economic activity” is specious. The “Necessary and Proper” Clause rules, on balance, tsunamis of Slippery Slope complaints and other red herrings notwithstanding.

  22. Still delusional. The feds cannot govern or regulate a non-occurrence. The feds cannot mandate commerce. The feds cannot make it illegal to not engage in commerce.
    Bobby, you are not compelled to be in the air force.

  23. You can sit here and pontificate until the snows cover your heads, but in the end you cannot mandate people purchase health care insurance if they feel they do not need it or benefit from such an expense. And the argument comparing it to purchasing car insurance is just lame, they are not equivalent situations.
    I equally acknowledge it is a poor choice to not have health insurance, especially if you are older than 40 years old. But, it is about freedom of choice, and this legislation has nothing to do about freedom of choice, the Democrats knew this back in early 2010 and now are genuinely afraid the country will learn what a perverse lie they propagated on the public last year. Yesterday, Mr Foster basically told the House Budget Committee this in so many words.
    I really have no respect or tolerance of people who lie and manipulate information to only benefit themselves. Personally, I will not vote for any incumbent for the next 4-5 election cycles until hopefully they are purged from the system. Maybe we will only get more liars and cheats as substitutes, but, maybe someone of integrity and responsibility will try to get into office to make healthy changes, who will take representation seriously.
    Just pay attention to the agendas of whomever votes on this legislation’s status these next couple of years, Supreme Court justices included.

  24. I need a bit of clarification regarding the following sentence:
    “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.”
    …. particularly as it pertains to the lexical equivalence of mandating purchase and prohibiting purchase.

  25. Where is the Constitution is an Air Force expressly authorized? I guess the National Security Act of 1947, which established the USAF, is “unconstitutional.”
    /s

  26. @Ray, The Constitution is an enumerative stipulation of powers afforded the federal government. If a power is not enumerated therein, it is not granted the federal government and is considered the domain of state and local governments. The Commerce and Necessary and Proper Clauses have been determined by SCOTUS to enable federal powers that are not expressly granted nor forbidden by the Constitution.
    I believe the mandate is constitutional and don’t understand what the enumerative nature of the Constitution has to do with this.

  27. If the mandate is constitutional, then I have a hard time seeing what limits there are to government power. Perhaps you don’t believe that there should be any limits, but if so then I hope you are explicit about it.
    Also, if there are no limits, then why did the framers explicitly list powers that Congress can exercise? The implication of a list is that there is something that’s not in Congress’ power.

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