reasoned thought for an age of uncertainty
With the Supreme Court displaying skepticism during oral arguments on the constitutionality of the Affordable Care Act, President Obama has responded in its defense, bringing the Supreme Court case to an almost unprecedented level of politicization. 26 Republican governors have challenged the health care act, and right now, it looks like the Supreme Court is split 5-4 against the bill. The central question about the Act is whether the individual mandate requiring individuals to purchase health insurance is constitutional. That question is the one that somehow has to be elevated above politics, and held constitutional.
The individual mandate is an amendment to the tax code that says individuals have to have health insurance, and if they do not, they will be subject to a tax penalty. Section 5000A of the tax code reads as follows:
“An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month. [...] If a taxpayer who is an applicable individual…fails to meet the requirement of subsection (a) for 1 or more months, then…there is hereby imposed on the taxpayer a penalty…”
In other words, get health insurance or pay up. So what is so controversial about this provision (other than the fact that it is a tax)? Why, for example, could Mitt Romney set up a similar health care system in Massachusetts, but the federal government (some believe) cannot? The constitutional issue is that Congress can only pass laws within powers specifically defined under Article I of the Constitution. Any governmental authority outside those defined powers are reserved for the states under Article X of the Constitution, hence Massachusetts.
Under Article I, Congress is granted the power to regulate interstate commerce in the so-called Commerce Clause. The Commerce Clause is one of the most controversial areas of constitutional law, because it is very easy to argue that just about anything Congress passes is related to the regulation of interstate commerce, and that is exactly what is at issue with health care. That said, there is a long history of cases about what Congress is allowed to do within the scope of the Commerce Clause, and that case history sheds light on our current situation.
The first big Commerce Clause case, and one of the most seminal cases in our nation’s history, was McCulloch v. Maryland (1819), where the Court ruled that Congress had the power to set up a national bank (now the Fed). There the court agreed that Congress had the power to do what was necessary and proper to regulating commerce. And as the country’s commerce has grown, so too has the court’s interpretation of that commerce power (or what is “necessary and proper” to that power).
In 1937, after a steel corporation challenged the National Labor Relations Act as infringing on state powers, the Supreme Court upheld the law as within the scope of Congress’ commerce power. A similar case made its way to the Supreme Court in 1941, when a lumbar yard brought suit against the Fair Labor Standards Act, which implemented a minimum wage, as unconstitutional. Again, the Court held the bill as being within Congress’ commerce power.
Perhaps the most significant Commerce Clause case in the 20th century came one year later in Wickard v. Filburn, when the Court upheld limits on the amount of wheat farmers could produce. Congress had imposed the limits on production in order to drive up the price of wheat during the Great Depression. Roscoe Filburn, a farmer in Ohio, had exceeded his quota and was assessed a penalty. The excess, he maintained, was for personal use and therefore not reachable by Congress under the Commerce Clause. The Court rejected Filburn’s argument in Wickard and established the standard for years to come on what falls within the Commerce Clause: an activity “may be reached by Congress if it exerts a substantial economic effect on interstate commerce,” irrespective of whether this is a direct or indirect effect.
The Commerce Clause came under fire again in 1964, when a local Burmingham, Alabama restaurant challenged the Civil Rights Act, which forbid discrimination in public places, as a violation of Congress’ power. In a 9-0 decision, the Court upheld the Civil Rights Act as within the scope of the Commerce Clause, because Congress had a ”rational basis for finding a chosen regulatory scheme necessary to the protection of commerce.” That is probably the most expansive standard that the Court has applied in scrutinizing acts of Congress under the Commerce Clause.
It wasn’t until 1995 that the Rehnquist Court began to scale this power back in a 5-4 split when it struck down the Gun-Free School Zones Act as beyond the commerce power and therefore a violation of states’ general police power under the 10th Amendment. Justice Kennedy wrote a concurrence in that case cautioning the court to use care when striking down a law under the Commerce Clause–a caution which appears to have since gone unheeded.
Even though the Court struck down the Gun-Free School Zones Act in Lopez, it failed to describe a new standard to apply, basically falling back on the “substantial effect” test. How guns in school do not have a substantial effect on interstate commerce is hard to explain, but what is clear is that guns do not fall within the social norm of what conservatives view as affecting commerce. While all the Supreme Court justices could agree in 1964 that segregation did affect interstate commerce, conservatives in 1995 thought the opposite was true of guns. The problem with this, of course, is that parsing social norms is a business for Congress, not the Supreme Court. The Supreme Court is supposed to be bound by constitutional standards, and they had already set those standards in previous cases: if a law has a substantial effect on interstate commerce it falls under Congress’ commerce power.
The Lopez case opened the door for further judicial activism, and it set the stage for the health care debate over the individual mandate today. In the oral arguments, Justices Scalia and Roberts have shown an atypical willingness to attack the Affordable Care Act. The issue that has drawn the biggest concern (primarily because Justice Kennedy does not like it and he is the swing vote) is the fact that the Affordable Care Act regulates commerce by requiring Americans to take an affirmative act. As stated with foreboding by Justice Kennedy:
“But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. [...] And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.”
Again, whether an Act of Congress requires an affirmative act is not part of the Commerce Clause jurisprudence. But since the conservative Justices have chosen to make it so, it is not clear that the Affordable Care Act is different in this respect from the Civil Rights Act or Fair Labor Standards Act. Both those laws also require an individual to make an affirmative act. The Civil Rights Act requires restaurant and store owners to serve people of color, the Fair Labor Standards Act requires employers to pay workers a minimum wage. Other federal laws require affirmative acts as well, such as filing taxes.
Even more importantly, Justice Kennedy is wrong that the law does not impose a duty to act to help those in need. Regular citizens are not required under tort law to assist those in need. But doctors are required to do so–by virtue of their profession, doctors (and the hospitals in which they work) are subject to a different standard of care. They have to help people, and that is exactly the issue. So the argument that this is a new form of relationship between the people and the government is disingenuous.
The affirmative act issue is a red herring, but what is central to the constitutional analysis is whether health coverage has a “substantial effect” on interstate commerce–that is the test the Supreme Court has established. Instead, the conservative Justices have engaged in discussions about what constitutes a “market” and whether individuals who are not buying insurance (and then later end up in the hospital) are “in” the health insurance market. This is a highly unusual exercise in constitutional law–generally discussions about the scope of a market only occur in antitrust law. But it is occurring in an important constitutional case most likely because the conservative justices are searching for grounds to strike down the Affordable Care Act.
Even more troubling, Justices Scalia and Roberts (and by default Clarence Thomas, who always one-ups the most conservative position despite never engaging in debate or other judicial responsibilities) seem eager to strike down the entire Act if the individual mandate is held unconstitutional. Scalia, in fact, goes so far as to say “if you take the heart out of the statute, the statute’s gone,” and complains, “You really want us to go through these 2,700 pages? [...] Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?”
Well, yes. And yes, that would be harder work than just scrapping the whole thing before lunch. After all, it wasn’t hard work to get the bill passed in the first place, was it?
No wonder the New York Times is decrying the Roberts court as being driven by politics, stating “If the conservatives decide that they can sidestep the Constitution to negate Congress’s choices on crucial national policies, the court’s legitimacy—and the millions of Americans who don’t have insurance—will pay a very heavy price.”
That is perhaps the most complicated issue for the justices to face: even if the conservatives want to kill the bill, a 5-4 decision will do irreparable harm to the Court. Justice Kennedy sits on that divide, and he must be painfully aware that his conservative perspective will be the one to weigh the final tally on this bill. The last time the Court was caught in a split like this on an issue of such importance, another conservative justice, Sandra Day O’Conner, was the one to cast the deciding vote. That was in 1992 during Casey v. Planned Parenthood, which challenged the constitutionality of Roe v. Wade. Rather than side with the other conservative justices, Justice O’Conner broke away and issued a separate opinion which became the plurality opinion of the court. “Liberty finds no refuge in a jurisprudence of doubt,” the opinion begins. It was joined by Justice Kennedy (as well as Souter). Let’s hope that Justice Kennedy has not forgotten that principle.