In a brief to the Supreme Court Solicitor General Donald Verrilli, Jr. has framed the core issue the Court must confront: “The uninsured, as a class, presently externalize the risks and costs of much of their health care; the (mandate) will require that they internalize them (or pay a tax penalty). This is classic economic regulation of economic conduct.”
It is important to remember that one-third of the 11th Circuit panel bought into this argument, as did panel majorities of the 6th Circuit and D.C. Circuit panels.
Opponents of the mandate raise the specter that, if Congress can compel us to buy health insurance then they can compel us to buy virtually anything – including, for example, that oft-maligned vegetable; broccoli.
Einer Elhauge, a Harvard law school professor wrote a cogent, op-ed analysis last year in the New York Times in which he defended the mandate against the so-called “broccoli theory”. Following is an excerpt from that article.
For decades, Americans have been subject to a mandate to buy a health insurance plan — Medicare. Check your paystub, and you will see where your contributions have been deducted, whether or not you wanted Medicare health insurance.
Many opponents dismiss this argument because Medicare (unlike the new mandate) requires the purchase of health insurance as a condition of entering into a voluntary commercial relationship, namely employment, which Congress can regulate under the commerce clause. Thus, they say, the Medicare requirement regulates a commercial activity, whereas the new mandate regulates inactivity. But is that a distinction of substance? After all, we don’t have much choice but to get a job if we want to eat.
Even if you accept this distinction, it means that Congress can mandate the purchase of health insurance as long as it conditions that mandate on engagement in some commercial activity. So the challengers would have to admit that a statute saying that “anyone who has ever engaged in commercial activity must buy health insurance” would be constitutional. This is effectively the same as the mandate, because it is hard to believe that anyone in this nation has never bought or sold anything in his life.
Even if there are a few hardy folks who grow or make everything they need, their activity can still be regulated because it affects commerce. The Supreme Court held in Wickard v. Filburn, in 1942, that growing and consuming your own wheat can be regulated under the commerce clause because it reduces demand for wheat and thus affects commerce. Accordingly, a statute saying, “anyone who has engaged in any activity that affects commerce must buy health insurance” would clearly be constitutional, and cover everyone, just like the new mandate. In the end, the opponents’ argument is merely about how the statute is phrased, rather than about its substance.
Opponents of the new mandate complain that if Congress can force us to buy health insurance, it can force us to buy anything. They frequently raise the specter that Congress might require us to buy broccoli in order to make us healthier. However, that fear would remain even if you accepted their constitutional argument, because their argument would allow Congress to force us to buy broccoli as long as it was careful to phrase the law to say that “anyone who has ever engaged in any activity affecting commerce must buy broccoli.”
That certainly sounds like a stupid law. But our Constitution has no provision banning stupid laws. The protection against stupid laws that our Constitution provides is the political process, which allows us to toss out of office elected officials who enact them. This is better than having unelected judges decide such policy questions, because we cannot toss the judges out if we disagree with them.
Nor are all required purchases stupid. It is not stupid to require us to buy air bags for our cars and pensions for our retirements. Nor would it be stupid to require us to buy life and disability insurance to make sure we have provided for our children. Whether the law should is up to our political process, not judicial second-guessing.
But the argument that the commerce clause does not authorize the insurance mandate is beside the point. The mandate is clearly authorized by the “necessary and proper clause,” which the Supreme Court has held gives Congress the power to pass any law that is “rationally related” to the execution of some constitutional power. For example, although the Constitution nowhere gives Congress the power to criminalize interfering with the mail, Congress can do so under the necessary and proper clause because it is rationally related to the constitutional power to establish post offices.
Everyone agrees that the commerce clause authorizes other provisions in the new health care reform act — those that require insurers to insure the sick and restrict premiums. But without the mandate, these other provisions would encourage the healthy to put off buying insurance until they got sick. With only the sick buying insurance, premiums would skyrocket and the market could fall apart entirely. In short, even if the mandate were not directly authorized under the commerce clause, it is authorized under the necessary and proper clause as rationally related to the constitutional exercise of the power to regulate premiums and prohibit rejecting the sick.
There are, of course, limits to what Congress can do under the commerce clause. If it tried to enact a law requiring Americans to eat broccoli, that would be likely to violate bodily integrity and the right to liberty. But the health insurance mandate does not require Americans to subject themselves to health care. It requires them only to buy insurance to cover the costs of any health care they get.
Elhauge mentions the 1942 case that pitted FDR’s Secretary of Agriculture Claude Wickard against Ohio farmer Roscoe Filburn. The Wickard case will loom large in the Supreme Court’s consideration of the challenge to the ACA mandate, as will a 2005 case known as Gonzales v. Raich in which the Court voted 6 to 3 in favor of upholding a federal law regulating home-grown medicinal marijuana.
Here’s the gist of the Wickard case.
In an attempt to stabilize the price of wheat Congress passed a law in 1938 telling farmers how much wheat they could grow and establishing a per-bushel penalty if the maximum was exceeded. The law was popular with farmers at the time because it helped to stabilize prices and increased net profits. Mr. Filburn, however, was not among those enamored with the new crop quota.
Filburn grew more than twice as much wheat as the government said he could. However he did not try to sell all of the wheat he grew on the market. More than half of the wheat was consumed on his farm, primarily to feed cattle. Thus, even though he had grown more than twice his quota the amount that he was trying to sell on the market was less than his quota.
The feds cried foul, saying the purpose of the law was to regulate the entire wheat market and not just the wheat that was sold on the open market. A $117.11 penalty was assessed and the government placed a lien on Filburn’s entire crop, to ensure payment of the penalty. The marketing card that he needed to sell the excess wheat (that he did not use for personal consumption or to feed animals on the farm) was withheld. Filburn filed suit in federal court.
The initial lawsuit did not mention the commerce clause but eventually, when the case reached the Supreme Court, the legal issues were recast and the Court honed in on the core concepts of federalism that were underpinning the law, vis-à-vis the commerce clause.
A decision against Filburn, his lawyers told the Court, would move the nation toward a centralized government and “nullifications of all constitutional limitations.”
In a 9-0 decision written by well-respected Justice Robert Jackson the Court ruled in favor of the government and against Filburn, a decision that has become the basis for the modern understanding of the scope of federal power.
“Even if appellee’s activity be local,” Jackson wrote, referring to Filburn’s farming, “and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.”
“Wickard has become so foundational for generations of lawyers that any plausible understanding of the commerce power must come to terms with it,” Bradley W. Joondeph, a law professor at Santa Clara University, was quoted saying in a recent New York Times article.
It’s not surprising then that the Obama Administration now argues that, if the government can force farmers to choose between growing wheat or paying a penalty then it can surely tell people that they must obtain health insurance or pay a penalty.
The Obama administration says the decisions of millions of people to go without health insurance has a similarly significant impact on the national economy by raising other people’s insurance rates and forcing hospitals to pay for the emergency care of those who cannot afford it.
They say ACA is a modest assertion of federal power compared to the 1938 law that Filburn challenged and the Supreme Court upheld.
“The constitutional foundation for Congress’s action is considerably stronger” for the health care law than for the law that the Supreme Court endorsed in 1942, the administration lawyers say; because ACA only “regulates the way in which the uninsured finance what they will consume in the market for health care services (in which they participate).”
“There’s a difference between being given an incentive and compulsion,” counters Michael A. Carvin, a lawyer for the National Federation of Independent Business. (Carvin had 30 minutes to make this argument before the Court on March 27).
Analogizing, Carvin says that, just because the federal government can “regulate bootleggers because of their aggregate harm to the interstate liquor market,” does not mean the government can “conscript teetotalers merely because conditions in the liquor market would be improved if more people imbibed.”
“Yet the uninsured regulated by the mandate are the teetotalers, not the bootleggers, of the health insurance market,” Carvin wrote in a brief to the Court.
A half-century passed before Wickard v. Filburn was effectively re-visited by the Court.
In a pair of 5-to-4 decisions, in 1995 and 2000, the court invalidated two laws, saying the activities that Congress had sought to address — guns near schools and violence against women — were local and noncommercial and thus beyond its power in regulating interstate commerce.
These curbs on federalism were due in large part to the long-standing concerns of two former Stanford law school classmates and fellow Arizonians; Justice Jackson’s former law clerk, Chief Justice William Rehnquist; and Justice Sandra Day O’Connor.
Of course, Rehnquist has died and O’Connor has retired. Also, they were in the minority of a 6-3 decision in the 2005 Gonzales v. Raich case which upheld a federal law regulating home-grown medicinal marijuana (Justice Clarence Thomas was the other dissenting vote).
The majority opinion in Gonzales was written by now-retired Justice John Paul Stevens and signed by Justice Anthony Kennedy. In the majority opinion Stevens said the similarities between Gonzales v. Raich and Wickard v. Filburn were “striking”.
“Here, too, Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would similarly affect price and market conditions,” Stevens wrote.
Justice Antonin Scalia wrote a separate concurrence in which he also cited Wickard v. Filburn.
“Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce,” Scalia wrote in siding with the government’s position in Raich.
The New York Times’ Adam Liptak mentioned these three more recent cases in a March 19 article in the Times in which he wrote that; “Supporters of the health care law say the Raich decision shows that even completely local and noncommercial conduct may be addressed by the federal government as part of comprehensive economic regulation. Opponents counter that marijuana, like wheat, is a tangible commodity that is bought and sold, while a lack of insurance is not an economic activity.
Liptak says the Obama administration is probably assured of the votes of Justices Ginsburg, Kagan, Breyer and Sotomayor.
Thus, Liptak predicts; “How Justices Kennedy and Scalia think about wheat, marijuana, health insurance and Roscoe Filburn may make all the difference.”
(I’ll close here for today and discuss my predictions, which have changed after the oral arguments, in a final post tomorrow)
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