Health Insurance and the Constitution's Commerce Clause

[Long Run]

As explained before Scooter, there are two types of activism: overriding a legislature and expanding the law (usually the Constitution). In this case, Congress is attempting to expand the bounds of the Constitution. As explained in the newest opinion, Congress knew full well that it was pushing the Commerce Clause where it had never gone before based on legal opinions it received while developing the law. If a court upholds Congress on this issue, then it is expanding the reach of the Commerce Clause. Either way, a court is being "judicially active".

What peeves Original Intent folks most, is when a court both overrides a legislature and expands on existing law. That is not happening in this case.

Interestingly, in this most recent case, the court held, based on the government's own argument about how essential the individual mandate is, that without the mandate it was impossible to accomplish Congress's intent. As a result, the judge overturned the entire law, not just the individual mandate. If that decision is upheld, then it is back to square one.

[Scooter]

As explained before Scooter, there are two types of activism: overriding a legislature and expanding the law (usually the Constitution).

Which is just another way of saying that it's only activism when you say it is.

In this case, Congress is attempting to expand the bounds of the Constitution.

In your opinion.

I repeat, if mandatory government health insurance for those over 65 (with the threat of jail for those who don't pay their premiums aka FICA) is constitutional, then claiming it to be unconstitutional for those under 65 when they have a choice of insurance carriers and face only a monetary penalty for non-compliance requires a level of hairsplitting of which I confess to being incapable (and as you may have observed, for me that is saying a lot).

What peeves Original Intent folks most, is when a court both overrides a legislature and expands on existing law. That is not happening in this case.

You mean like when a court rules that a corporation with neither a mouth to talk with nor hands to write with decides that how it spends its money constitutes "speech" and thus overturns decades of legislative consensus on campaign financing? No, no "activism" there, no siree.

Interestingly, in this most recent case, the court held, based on the government's own argument about how essential the individual mandate is, that without the mandate it was impossible to accomplish Congress's intent. As a result, the judge overturned the entire law, not just the individual mandate.

Which, based on Andrew's analysis, completely up-ends the way the Court has previously dealt with analogous situations in the past. But no, that's not "activism".

[Big RR]

I repeat, if mandatory government health insurance for those over 65 (with the threat of jail for those who don't pay their premiums aka FICA) is constitutional, then claiming it to be unconstitutional for those under 65 when they have a choice of insurance carriers and face only a monetary penalty for non-compliance requires a level of hairsplitting of which I confess to being incapable (and as you may have observed, for me that is saying a lot).

Of course, the medicare system is different because it does not force anyone to do business with a private company, there is a public option and one can either pay the price or pay the tax to get the benefit. I think this will be emphasized at some point; I'm not saying it is (or should be) dispositive, but it's another reason there should be a public option.

[Gob]

My name is Linda Peeno.

I am here primarily today to make a public confession: In the Spring of 1987, as a physician, I denied a man a necessary operation that would of saved his life, and thus caused his death. No person, and no group has held me accountable for this, because in fact, what I did was I saved a company a half a million dollars for this.

And for the more, this particular act secured my reputation as a good medical director, and it insured my continued advancement in the health care field. I went from making a few hundred dollars a week as a medical reviewer, to an escalating six-figure income as a physician executive. In all my work, I had one primary duty, and that was to use my medical expertise for the financial benefit for the organization which I worked.

And I was told repeatedly that I was not denying care, I was simply denying payment. I know how managed care maims and kills patients. So I am here to tell you about the dirty work of managed care. And I'm haunted by the thousands of pieces of paper in which I have written that deadly word - "denied".

[Scooter]

Of course, the medicare system is different because it does not force anyone to do business with a private company

It forces you to do business with the public insurer; unlike the mandate under health care reform where you can choose any insurer you wish. And because it bears repeating, there's that whole going to jail for not paying FICA vs. a mere monetary penalty thing. Yet someone mandated private insurance is seen to be more coercive than Medicare? Sorry, not buying it.

[Big RR]

But doing business with the public insurer is just a tax, and taxes are permissible under the Constitution. I think the strongest argument that could be made is that while the government has the power to force me to pay a tax for a benefit, regardless of whether I need or want it it does not have the power to force me to pay another private citizen or business for the same. Again, I don't think it is a slam dunk for those challenging the healthcare system, but it shows why a public option would have been a good idea.

[Guinevere]

One of these days I have to read through all of this carefully -- thank you Andrew for the work. I'm curious if you looked at the litigation in Massachusetts over "Romney-care" since some of the federal mandate is clearly based on our program (I realize the underlying question about the validity of the program at the federal level is different than at the state level). Claims were brought under the MA Declaration of Rights and US Constitutions (also helpful that the US Constitution was based on the Massachusetts Declaration of Rights). The gravamen of the complaint surrounded the penalty for non-compliance, which is loss of a personal exemption enforced via the tax return process, and included due process claims and categorizing the penalty provision as a bill of attainder.

I haven't had time to parse through the various claims, but the case is captioned Fountas v. Dormitzer, was dismissed from Essex County Superior Court, there was some briefing at the appeals court, and I believe the SJC declined any further review.

[dgs49]

(a) Is it a good idea?

(b) Is it permitted by the Constitution?

The second of these - first in importance - is the one that Libs refuse to ask or, rather, to answer honestly. Thankfully, it is not even a close question when applied to a mandate by the Congress that anyone purchase insurance (or suffer a penalty).

But I concede, it's probably a good idea, all things considered.

[Big RR]

I'll have to look at that when I get a chance, Guin.

DGS49--if there were a public option, would you concede it is permitted under the constitution? And if not, are social security and medicare not permitted?

[Long Run]

I'm curious if you looked at the litigation in Massachusetts over "Romney-care" since some of the federal mandate is clearly based on our program (I realize the underlying question about the validity of the program at the federal level is different than at the state level).

There were 9 legal basis argued in Fountas: http://www.mass.gov/Ador/docs/dor/News/ ... ruling.pdf

None of the arguments had any overlap with the arguments made against PPACA. Congress could have bribed the states to implement the individual mandate rather than having the federal government attempt the mandate. Supporters of PPACA, knowing they were on shaky constitutional grounds, may wish they had taken the time to figure out how to get the states to implement the mandate.

[Long Run]

Long Run wrote:As explained before Scooter, there are two types of activism: overriding a legislature and expanding the law (usually the Constitution).

Which is just another way of saying that it's only activism when you say it is.

Sure it is activism. But it would also be activism to uphold the law.

In this case, Congress is attempting to expand the bounds of the Constitution.

In your opinion.

And the reasoned opinion of two judges and wide swath of the legal community. Congress was well aware of this issue and that they were pushing the Commerce Clause boundary when they wrote the law. As DG says, not every good idea is constitutional.

I repeat, if mandatory government health insurance for those over 65 (with the threat of jail for those who don't pay their premiums aka FICA) is constitutional, then claiming it to be unconstitutional for those under 65 when they have a choice of insurance carriers and face only a monetary penalty for non-compliance requires a level of hairsplitting of which I confess to being incapable (and as you may have observed, for me that is saying a lot).

You are, of course, more than plenty smart to understand the legal difference. Policy wise, it makes no sense. Legal wise, that's the way it is.

You mean like when a court rules that a corporation with neither a mouth to talk with nor hands to write with decides that how it spends its money constitutes "speech" and thus overturns decades of legislative consensus on campaign financing? No, no "activism" there, no siree.

Yes, that is activism. The court overturned legislation based on an novel look at the First Amendment, and expanded the reach of the First Amendment (still not sure how I feel about that one). However, they did not overturn an on-point precedent, which would be even more activist. No doubt, depending on where you sit, an activist court can be a good thing or a bad thing.

[Guinevere]

I'm curious if you looked at the litigation in Massachusetts over "Romney-care" since some of the federal mandate is clearly based on our program (I realize the underlying question about the validity of the program at the federal level is different than at the state level).

There were 9 legal basis argued in Fountas: http://www.mass.gov/Ador/docs/dor/News/ ... ruling.pdf

None of the arguments had any overlap with the arguments made against PPACA. Congress could have bribed the states to implement the individual mandate rather than having the federal government attempt the mandate.

Thanks Long Run. I really should read this stuff on my own!

Supporters of PPACA, knowing they were on shaky constitutional grounds, may wish they had taken the time to figure out how to get the states to implement the mandate.

That one is easy -- elect Mittens Romney President (not that I'm endorsing that solution mind you)!

[Andrew D]

I repeat, if mandatory government health insurance for those over 65 (with the threat of jail for those who don't pay their premiums aka FICA) is constitutional, then claiming it to be unconstitutional for those under 65 when they have a choice of insurance carriers and face only a monetary penalty for non-compliance requires a level of hairsplitting of which I confess to being incapable (and as you may have observed, for me that is saying a lot).

The salient difference, it seems to me, is that Medicare (FICA) is enacted pursuant to Congress's taxing power: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States." (U.S. Const., Art. I, Sec. 8, Cl. 1.) The PPACA, however, is enacted pursuant to Congress's commerce power: "The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes[.]" (U.S. Const., Art. I, Sec. 8, Cl. 3.)

Different constitutional powers result in different constitutional rules. The taxing power is broader than the commerce power. The taxing power is limited only by the uniformity requirement and the general-welfare requirement.

(I do not want to replough old ground; there is a detailed discussion (principally involving dgs49 and me) around here somewhere of different views of the taxing power. Suffice it to say that one position, espoused by Madison, Jefferson, and dgs49 (who has a lot of company among modern conservatives), holds that Clause 1 does not articulate a distinct power; rather, it states the reasons for the articulation of the following powers. (Rather parallel to the Constitution's Preamble: One cannot make a legal claim of violation of the "more perfect Union" clause, because that clause is not a constitutional rule; it is just an explanation of the rules embodied in the substantive articles.) In the great national debate on the subject, that is the position that has lost. The other prominent position, probably best stated by Hamilton and Story, is that Clause 1 articulates distinct power -- that the taxing power is a power unto itself, not just a rationale for the following powers -- limited only by the uniformity requirement and the general-welfare requirement. In the great national debate on the subject, that is the position that has won.)

It would be very difficult to argue that taxation for the purpose of providing health insurance is not within Congress's taxing power. (It is possible, of course, to argue that a single-payer system would not actually enhance the general welfare. But the Supreme Court takes a very deferential view of Congress's determinations of what does and what does not enhance the general welfare. As far as I know, no statute has ever been struck down on the ground that it did not enhance the general welfare.)

But whether the PPACA is within Congress's commerce power is another matter. That is the principal question discussed in the opening posting. On one hand, one can argue that Congress's commerce power does not extend to people's simply doing nothing (i.e., not purchasing health insurance). On the other, one can argue that by choosing not to purchase health insurance, people are choosing a method of participating in the national health-care market -- choosing some other method of paying for their health care. (And under the Supreme Court's repeated holdings that if an activity, in the aggregate, substantially affects interstate commerce, the fact that a particular instance of that activity does not substantially affect interstate commerce is irrelevant, the fact that some people will never require health care at all does not matter.)

Again, different constitutional powers are construed according to different constitutional rules. The mechanism that would have easily passed constitutional muster (unless the Supreme Court decided to overturn a host of precedential decisions handed down over the past seventy-plus years) -- a single-payer system -- under Congress's taxing power was politically impossible to enact. But if the Supreme Court strikes down the PPACA as exceeding Congress's commerce power, the political realities may change. (See the opening posting's discussion of the "dormant" commerce power and how a Supreme Court ruling based on that doctrine ushered in the modern era of federal regulation.) We may end up with a single-payer system after all.

In this case, Congress is attempting to expand the bounds of the Constitution.

Not necessarily. Congress's exercising a constitutional power in an unprecedented is not always an expansion of the bounds of the Constitution. (After all, the congressional exercise of power at issue in Gibbons v. Ogden was unprecedented at the time.) If the PPACA is within Congress's commerce power, it is not an expansion of ther bounds of the Constitution; it is simply a venturing closer to those bounds than has been done before.

[Long Run]

And the merry-go-round spins still.

A Third Judge Validates Health Care Overhaul Law
By KEVIN SACK
Published: February 22, 2011

A third federal judge upheld the constitutionality of the Obama health care law on Tuesday, reinforcing the divide in the lower courts as the case moves toward its first hearings on the appellate level.

http://www.nytimes.com/2011/02/23/healt ... ntemail0=y

[Andrew D]

Thus far, Democrat-appointed judges have upheld the law, and Republican-appointed judges have struck it down. Appellate panels commonly include Democrat- and Republican-appointed judges on the same panel, so I am waiting to see what the appellate courts have to say.

[Andrew D]

In the latest issue of The New Republic, Jonathan Chait makes a point that should have occurred to me a long time ago:

Congress has prohibited other kinds of inactivity -- not getting a vaccine, not joining the military, and many others.

(Jonathan Chait, "Kangaroo Court," in The New Republic (3 March 2011) at p. 2.)

So if Congress can prohibit "merely existing" without getting a vaccine and "merely existing" without at least registering for the Selective Service, why can Congress not prohibit "merely existing" without purchasing health insurance?

[Long Run]

So if Congress can prohibit "merely existing" without getting a vaccine and "merely existing" without at least registering for the Selective Service, why can Congress not prohibit "merely existing" without purchasing health insurance?

Doesn't this go back to the point that from a policy standpoint, the differences don't make sense, but from a legal standpoint, the other activities have a basis in the Constitution other than the Commerce Clause? The Selective Service must derive from the Constitutional authority to have a standing army and the registration would be part of the reasonable actions to accomplish that purpose. I am unfamiliar with a federal mandate of a vaccine; I know state mandated vaccinations have been upheld under the state police power. And states are allowed to impose regulations that the federal government cannot.

[Gob]

Thus far, Democrat-appointed judges have upheld the law, and Republican-appointed judges have struck it down.

Thanks for that Andrew, my chuckle of the day,.

Your system was constructed by a barrel of monkeys fighting over a typewriter.

[rubato]

...

That one is easy -- elect Mittens Romney President (not that I'm endorsing that solution mind you)!

Romney has repudiated on the national level the very legislation he promoted in Mass.

yrs,
rubato

[dgs49]

Of course, whether it was Constitutional in Massachusetts and whether it is Constitutional for the Federal government are two different questions. It very well may be permissible to a state (which has plenary power) but not to the Feds (which have limited power).

But I think the Mittster is saying he's changed his mind.