With the historic health care reform bill not yet signed into law, opponents are already preparing to take the predictable next step to challenge the measure in court as unconstitutional. The litigation promised by attorneys general in 11 states will give opponents a new forum to register their disagreements, but the legal arguments appear to be clearly contradicted by Supreme Court precedents supporting Congress’s regulatory and taxing powers over interstate commerce.
The attorneys general, all of them Republicans, also plan to argue that the measure violates states’ sovereignty. Virginia has already passed and other states are considering legislation aimed at blocking the federal law from taking effect within their borders. On that score, the Constitution itself could hardly be clearer. Under the Supremacy Clause (Art. VI), the Constitution and “the laws of the United States” are “the supreme law of the land,” any state laws to the contrary notwithstanding.
The opponents correctly note that the bill’s central provision a tax-based mandate for everyone to purchase health insurance is unprecedented, but the lack of a precedent is not constitutionally fatal. Before passage of the federal wage and hour law in 1938, it was also unprecedented for Congress to require all employers to pay a minimum wage and overtime to all employees. But the Supreme Court upheld the law in a unanimous decision three years later (United States v. Darby Lumber Co., 1941), and hardly anyone doubts its constitutionality today.
The legal experts defending the constitutionality of a health insurance mandate start with a famous Supreme Court decision two years later that rejected a farmer’s attack on a federal agriculture quota limiting the amount of wheat he grew for his own consumption. In Wickard v. Filburn (1943), the court unanimously said that Congress’s power over interstate commerce extends even that far. The farmer’s “trivial” contribution to the demand for wheat was “not enough to remove him from the scope of federal regulation,” Justice Robert H. Jackson explained, “where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.”
Opponents of the health insurance mandate criticize the decision. Andrew Napolitano, legal analyst for Fox News and a former state court judge in New Jersey, calls the ruling “notoriously tendentious.” In an op-ed in the Wall Street Journal in September, Napolitano argued in any event that health services is neither commerce nor interstate. “In almost all instances, the delivery of medical services occurs in one place and does not move across interstate lines,” Napolitano wrote. In addition, “one goes to a physician not to engage in commercial activity, as the Framers of the Constitution understood, but to improve one’s health.”
Anyone who has recently been billed for medical or hospital services will understand that commercial activity is taking place. As for Napolitano’s narrow definition of interstate commerce, the Supreme Court followed that approach in the early 20th century, but has taken a broader view almost without exception since the New Deal.
True, under Chief Justice William H. Rehnquist, the Supreme Court twice in the 1990s invoked a narrower definition of interstate commerce to strike down federal laws that banned possession of guns near schools (United States v. Lopez, 1995) and that created a federal cause of action for victims of gender-motivated violence (United States v. Morrison, 2000). Five years later, however, the court returned to a broader view in ruling that federal drug law takes precedence over state laws allowing medical use of marijuana. As Justice John Paul Stevens explained in Gonzales v. Raich (2005), home-grown marijuana, like home-grown wheat, could have a “substantial effect on supply and demand in the national market for that commodity.”
Opponents of the health insurance mandate also argue that the measure will effectively require some people to subsidize insurance for others. Supporters counter that such subsidies are the very nature of an insurance pool. Regardless, the Supreme Court in Wickard v. Filburn answers the argument. Any regulation, Justice Jackson explained, imposes a cost on the regulated in order to benefit the broader public good. Those conflicts, he said, “are wisely left under our system to resolution by the Congress,” not the courts.
The opponents look to the Tenth Amendment for their state sovereignty arguments, with its language reserving to the states all powers not delegated to the national government. The Supreme Court once famously described the amendment as a mere “truism.” In any event, if the law is a valid exercise of Congress’s commerce power, the Tenth Amendment is satisfied. And Congress’s power to enact the measure is even clearer if viewed as a tax. The law actually operates by imposing an excise tax on anyone who does not have health insurance. And Congress’s taxing power is almost unbounded even if the purpose is not to raise revenue, but to regulate conduct.
Some constitutional law experts see some validity in the opponents’ arguments including Randy Barnett, a libertarian professor at Georgetown University Law Center and the losing lawyer in the medical marijuana case. Most other legal experts see the opponents’ attack as implausible, bordering on the frivolous. “I don’t think the vote would be close,” Timothy Jost, a health law expert at Washington & Lee University (no relation), told the Washington Times last fall.