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Is the health care legislation unconstitutional?

President Barack Obama signing the health insurance reform bill in the East Room at the White House on Tuesday.
President Barack Obama signing the health insurance reform bill in the East Room at the White House on Tuesday.

Assuming that the health-care reconciliation bill passes the Senate and is signed by President Obama, the argument over the new law will continue for a while in the judicial branch, although legal scholars say the court challenge to the  constitutionality of the big health-insurance bill is unlikely to fare well.

Led by Attorney General Bill McCollum of Florida, the attorneys general of 13 states followed through Tuesday on their threat to file suit challenging the law. (Minnesota is not on the list and, although Gov. Tim Pawlenty has asked Attorney General Lori Swanson to consider challenging the law, her spokester indicated yesterday that she was in no hurry to get involved. So far, 12 of the 13 AGs who have signed the complaint are Republicans.)

The complaint by the AGs is here. Although it makes several arguments, it fundamentally alleges the new law violates the 10th Amendment to the U.S. Constitution because it exceeds the powers delegated to the federal government by the Constitution.

The 10th Amendment says:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

According to the lawsuit, the new law violates the rights of the people and the states by:

  1. imposing a new mandate on individuals to obtain health insurance or face a penalty and
  2. imposing on the states new costs by expanding Medicaid, which is a federal-state program.

I talked to three law professors with expertise in various aspects of the case and they echoed what one of them, Lucinda Jesson of Hamline Law School, said, which is: “I would be surprised if it was taken seriously by the courts.”

The biggest weakness in the AGs' challenge is that one of the enumerated powers of the Congress is the power to regulate interstate commerce. That clause has been used so often and so widely since the New Deal to justify expansions of federal power over any economic activity that courts would have to backtrack to the early 1930s to find a doctrine that would interfere with the health care bill.

If you want the full background of the 10th Amendment, how it got into the Constitution and what it has meant at various stages of Constitutional history, please check out this primer by your humble and obedient ink-stained wretch, written six months ago after Gov. Pawlenty and Rep. Michele Bachmann made similar 10th Amendment arguments against the health care bill.

The new wrinkle is the focus on the individual mandate, which is one of the many, many, many key provisions of the new law.

Jesson, who specializes in the legal aspects of health care, points out the mandate doesn’t cover everyone. The bill includes exemptions for those who have religious objections to getting insurance, Native Americans, those who would go without coverage for less than three months, undocumented immigrants, prisoners and those for whom the payment of insurance premiums would cause a financial  hardship (defined as those for whom the least expensive insurance plan available would consume more than 8 percent of their incomes).

She added that the penalty that would be imposed on scofflaws who refuse to get insurance (without qualifying for any of those exceptions) is technically not a penalty but a tax, which would be administered through the IRS. In addition to its power to regulate interstate commerce, the Congress also has the constitutional power to lay and collect taxes.

The government imposes a lot of mandates on U.S. citizens (many of which are imposed through the taxing power). But, Jesson said, there has been no precise precedent for the federal government imposing an obligation on citizens to buy a product from a private party (as, in this case, a health insurance policy from an insurance company).

You may be thinking about the requirement that drivers acquire car insurance, but

  • a. that is imposed by states, not the feds and
  • b. you can opt out of the car insurance if you opt out of having a driver’s license. So, Jesson concluded, if the courts do want reverse the decades of affirming federal powers under the interstate commerce clause, they could conceivably rely on the unprecedented aspects of the new mandate.

The commerce clause

The attorneys general know they will have a tough time convincing the courts that any business activity is beyond the reach of federal power over interstate commerce but one of the participating AGs, Kenneth Cuccinelli of Virgina, made a stab at ridiculing the previous expansive interpretations of Congress’ interstate commerce power when he told the Richmond Times-Dispatch that “just being alive is not interstate commerce. If it were, Congress could regulate every aspect of our lives.”

The trouble is that every recent states rights-based challenge to a federal law on these grounds has failed.

In one of the most extreme recent examples of that doctrine, the Supreme Court struck down a California law allowing the use of marijuana for medicinal purposes. The Supremes said a state could not legalize marijuana — even though the marijuana in question was grown and consumed in California and therefore did not cross any state lines — because a federal drug law banned marijuana and that this intrastate marijuana program was nonetheless “inextricably bound up with interstate commerce,” and therefore could be regulated by the feds.

One of the dissenters, Justice Clarence Thomas, wrote in outrage that:

“If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress' Article I powers — as expanded by the Necessary and Proper Clause — have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to ‘appropriate state police powers under the guise of regulating commerce.’"

So the challengers to the new mandate might have a friend in Justice Thomas, although it would seem that health insurance is more deeply entangled with truly interstate commerce than was true with medical marijuana in California.

But the California marijuana decision rejecting Thomas’ argument was accepted by six of the nine justices and included a concurring opinion by the court’s leading conservative, Justice Antonin Scalia.

'Commandeering' is a no-no

Because of precedents like these, Professor Suzanna Sherry of Vanderbilt University law school, who has guided me through many a constitutional law question since her days at the U of M law school, said that most of the arguments she hears the AGs advancing in this case are constitutional “nonsense.”

The best hope for the challengers, Sherry said, would be to make the argument that the health care bill is attempting to “commandeer” the power of the state governments to enforce the mandate. The recent cases in which the Supreme Court has upheld states’ rights in a 10th Amendment decision have been cases that included this “commandeering” doctrine. To explain what that entails, allow me to lift two paragraphs from my previous 10 Amendment primer, cited above:

Sherry said there were really only two cases of any consequence in which a 10th Amendment challenge prevailed. One such case, New York vs. the United States (1992), involved federal incentives amounting to compelling the New York Legislature to enact laws that the feds preferred for the handling of waste from nuclear power plans. In the other, Printz vs. the United States (1997) , the Supremes struck down certain portions of the Brady Handgun Violence Prevention Act because the act required local law enforcement officials to conduct background checks when someone tried to buy a handgun. The key was not the gun rights issues (and most of the act remains in place), but the fact that the feds were treating state and local officials as arms of the federal government. The key word, Sherry said, is “commandeer.” The current reading of the 10th Amendment is that it bars the federal government from “commandeering” either the state legislature (forcing it to enact particular laws) or the state/local executive branches (forcing its officials to enforce policy).

“Essentially, the Supreme Court is saying that Congress cannot tell state and local officials how to do their jobs,” Sherry said.

If the new federal law forces the states to enact state laws to make the new insurance exchanges work or requires the states to police the exchanges, she could imagine the courts taking an interest But at this point, Sherry said, it isn’t clear to her what policing roles the new health care bill imposes on the states.

The AGs' complaint does indeed invoke the language of “commandeering,” although only once in passing and it does not suggest that the new law forces the states to do any policing, nor forces them to adopt new legislation. Instead, it concentrates on the fact the health care bill’s main mechanism for providing coverage to those who are too poor to afford it is to expand the Medicaid program. Medicaid is a federal program that operates with a combination of federal and state funds. The AGs assert that as the program expands to comply with the new law, it will force the states to greatly increase their share of Medicaid costs and therefore imposes spending requirements on the states in violation of the 10th Amendment.

Carrots, yes; sticks, no

The trouble with that argument, said University of Minnesota Law Professor Heidi Kitrosser (who teaches both the commerce clause and the 10th Amendment in her constitutional law classes) is that states are not required to participate in Medicaid. The states opted in, and they can opt out. All true, but Kitrosser said that the Supreme Court has also taken a very broad view of what kinds of strings the federal government can attach to its own spending programs. If the feds were to say to the states: You must participate in Medicaid or you must increase Medicaid spending, they might run into 10th Amendment problems.

But, Kitrosser said, as long as the feds simply say to the states, you can participate in Medicaid or not, but if you participate, you must meet these requirements, the courts have been “extremely deferential” to the discretion the feds have to attach such conditions to federal aid, even if the net effect is pressuring the states to do things they don’t want to do.

The landmark case along these lines comes from our neighbor South Dakota. In 1984 Congress passed a law that said any state that allowed kids under 21 to buy alcohol would lose 5 percent of its normal federal highway subsidies under the interstate highway program. South Dakota, which allowed alcohol purchase and use at age 19, challenged the law as an intrusion into its 10th Amendment rights to decide drinking ages for its own citizens. But the court said no, the feds aren’t forcing you to do anything. You can have any drinking age you want, if you are willing to lose some federal funds, but the feds can attach strings to their subsidies.

Kitrosser said this problem seemed to a “major, obvious weakness” in the AGs' attempt to challenge the health law on 10th Amendment grounds.

As a practical matter it seems almost unthinkable that states would drop out of Medicaid. The AGs acknowledge as much, while also acknowledging that, technically at least, the states could opt out of Medicaid if they don’t like the new law. The complaint says:

“The only...way for a state to avoid the Act’s requirements is to drop out of the Medicaid program, leaving millions of persons uninsured.”

You could argue, and the AGs may argue, that given the enormous reliance of states on federal subsidies, that the 10th Amendment has become almost meaningless. And that might be right.

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Comments (21)

Thanks for this, Eric. A great primer on why these claims that the bill is unoconstitutional are nothing more than political posturing.

The Tenth Amendment is meaningless, and has been so for almost two hundred years. This is not my own opinion--it is the legal decision made by the US Supreme Court in 1819 (McCulloch v. Maryland).

As opposed to the filibustero, which is explicitly authorized by the Constitution ;-).

The irony of course is that health insurance has always been a states' jurisdiction, and in fact one of the republicans' ideas for improving health care was to allow people to buy health insurance across state lines the way we all buy car insurance. If the democrats had simply accepted that proposal they would have defanged the republicans' strongest 10th Amendment rationale. But they didn't and so the argument has merit.

So Justice Thomas is correct and Congress has no limits to it's power to tax and regulate. Wonderful. And the 10th Amendment just goes away because it's inconvenient for all of those experts who know how our lives should be led.
A hypothetical, if I may. Let's suggest that a future Congress decides to levy a tax on all homeowners who don't own a gun. Their reasoning is that guns are used to protect property and property is, of course, a part of commerce. From what I've read above this would be a legal and constitutional action. Can that possibly be correct?

Unlikely, Mr. Defor, because the supreme court is unlikely to find that the mere ownership of property implicates interstate commerce. There are limits to the comerce clause: for example, in recent years, the Violence Against Women Act was struck down because the court found that violence against women was not closely connected to interstate commerce. It is highly unlikely the court would find that the mere ownership of property is enough to regulate under the commerce clause.

Mr. Tester, the 10th Amendment argument really doesn't have merit, because the commerce clause and power to tax gives the federal government the power to pass this bill.

Those who are concerned with the individual mandate should take heart, however. My understanding is that there is virtually no enforcement mechanism in the bill if you don't pay the tax. That's why insurance companies are upset; they want universal health care, but only if the healthy people are in the pool. They are concerned that healthy people won't get insurance (b/c if you don't pay the penalty, there are no repercussions); then, when they get sick, the insurance companies won't be able to deny them. Thus, they'll pay only when they get sick -- which messes up the insurance pool. You need all healthy people paying in to keep costs in line.

My point, Mr. Eldred, is that the democrats dismissed the republican idea of allowing insurance purchase across state lines because, they argued, it was a states rights issue. And it seems to me that the enforcement mechanism for non-compliance is to be the IRS, since the penalty would be in the form of a tax. Those who argue that the courts won't rule in favor of the states ignore two things - this is a conservative court who believes in states' rights, and 2, this is a unique and unprecedented reach by the federal government that the court will take lightly.

Mr. Tester, I certainly agree that at the end of the day, that all of the debate regarding constitutionality by any but nine people is fruitless, as those nine are the only ones who ulimately get to decide what is and isn't constitutional. That said, I'm willing to bet a beer that even this conservative court does not overturn this legislation.

Nice summary, Eric.

If there is, in fact, no enforcement mechanism – simple enough to devise by asking for policy numbers and company on one's tax form – it's a flaw in the legislation, but I'd be surprised if it were allowed to continue for very long. Dave Eldred is correct in that no insurance pool will function actuarially if those least likely to need or use it are allowed to opt out. Their enrollment is necessary to balance those likely to be frail and sick.

On matters of constitutional law, it pays to pay attention to the law professors.

But Mr Eldred, as was pointed out in the article, the mere ownership of a small number of plants meant for self-consumption was somehow enough to trigger the interstate commerce clause. The threshhold must be ridiculously small. In our current circumstance the all that's needed to trigger it is the mere fact of being alive! With a creative enough lawyer *anything* is commerce.

I'm surprised that Ms. Bachmann hasn't been able (or unwilling?) to explain her assertion that the health care reform bill is unconstitutional -- her being a graduate of Oral Roberts U (JD) and the Marshall-Whyte School of Law at the College of William and Mary (LL M in tax law).

I hear you, Mr. DeFor, and without question, over the last 200 years, the supreme court has expanded the definition of commerce. That said, it has pushed back in recent years, striking down VAWA and the Gun-Free School Zones Act -- it found that neither violence against women or guns in schools implicated interstate commerce. So, there are limits.

These must be the states who are not short of money.
Whether the Senate passes anything, there has been a new law passed and signed.

Insurance has been a state matter for some good reasons but it doesn't have to be. Thefederal government could always regulate it.

Let us remember that the Democrats did not go for selling insurance across state lines because it would have brought us the same, wonderful results as we found in the Credit Card system when the courts removed the ability of individual states to regulate credit card issuers within their boundaries: false and misleading contracts coupled with one party to that contract, the credit card company being allowed to change the terms at will.

This is exactly the type of thing we could expect from our insurance policies if the doors were opened to sales across state lines with the end result being the same as it was with credit cards - a massive transfer of wealth from the poor and middle class (and upper middle class for that matter) to the companies involved and the already fabulously wealthy.

There's a well-settled principle that there is no right to refuse to enter into a contract where such a refusal would directly violate a valid federal law. See
Heart of Atlanta Motel v. U.S.

"The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation, the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process." 300 US 391.

That's the Supreme Court saying that. In 1937. This principle is almost 80 years old.

This constitutionality argument is bunk. There is, yes, some minor novelty in that consumers will be forced to act, whereas before only sellers had been forced to act ... but why do we privilege one side of a contract over another? The sellers in this case certainly aren't complaining about the mandate!

Such a principle would be antithetical to a common law understanding of what a contract is. This argument is going nowhere. I almost hope that this actually does make it to SCOTUS so everybody can see the 8-1 or 7-2 vote that shoots down this self-righteous Republican drivel.

Hey liberals and progressives. You have been had. Here's the real story by Andy Stern's former girlfriend, Jane Hamsher.

"Rather than actually helping the poor, this bill is a dangerous and unprecedented step on the road to domination of government by private corporate players who use it to suppress competition and secure their profits — the textbook definition of fascism."

Bye Bye in November.

Lyndon LaRouche, a longtime political crank, is once again aggressively searching for new recruits. I can see he found one ;)

Whoa son fish on!

I'm always suspicious when law professors are brought into an argument, because they are part of that "ivory tower" group divorced from nearly all reality. And besides, they can be selectively introduced simply to bolster a one-sided argument -- they are, after all, lawyers.

I am also suspicious when people start bringing the "unconstitutional" charge against something. Unless it involves the right to bear arms, it seems to me that nearly all such claims in the past 100 years have been specious. Income tax, anyone?

I am firmly against the notion (Note the liberal term) that the Constitution is merely a set of principles which need to be "interpreted" -- sometimes out of existence -- in light of current fads. Willy-nilly discovery of new "rights" not passed by consitutional amendment are anathema to me.

All that being said, and allowing for the current makeup of the court, I'll bet a dime to a dollar that the current act in question will not be found unconstitutional.

The possible violation of statute regarding Social Security and Medicare, however, is another question.

The argument that the illegality of purchasing insurance across state lines somehow invalidates the interstate commerce clause misses a key point.

Congress established the law prohibiting the sale of health insurance across state lines - it's current illegality is a state acheived through congress having exercised it's power of regulating interstate commerce in this industry.

You run into several other constitutional issues with this health care bill, You have some big issues, Look at the fines. No liberal neo-socialist who voted for this bill has yet to take about what happens when you don't have what the government calls "minimal coverage" you get fined, and you could end up in jail. A real legal scholar can see two violation of your rights under the 5th Amendment. The 5th clearly states we can not be deprived of life, liberty, or property, without due process of law. If you do not want health care congress and the president have infringed against your liberty. By forcing a business or person to pay federal criminal fine you are establishing guilt without a court of law.

Does Congress expect the court system to be swamped with millions of American's being found guilty of not having health care? Will the Liberals need to establish health care courts now?

Under the 9th Amendment certain rights, shall not be construed to deny or disparage others retained by the people. This protects against federal infringement of unenumerated rights. This is a line where we the people limit the power of congress to infer upon our rights. If we do not want to have health care we should not be forced to buy it, have it, or own it. It is a natural right of every American to make that choice and not the government.

Under the 14th Amendment you will have medical care that will be separate but unequal for the people who are forced on to the states medicare rolls versus people with private medical coverage, Congress will create two systems that violates equal protection under the law. The current Government has given health care the same status as education, and should be treated as such by the courts. You can not have separate but equal in schools, and the same should apply to this health care bill.

Liberals say well its interstate commerce. They denied the clear Stare decisis fact there is no historical precedent for forcing Americans to buy a product. They will argue auto/ home coverage, but not every American drives or ha a house. You will have them use income, social security, Medicaid/ medicare taxes, but not everyone American pays into these system. You have children, homeless, unemployed, the jobless, People of faith like Amish and a few other religious communities are exempted. These groups do not pay into these systems. If you do not buy health care you are not engaging in commerce.

To make this bill legal you would need a 28th Amendment, until then health care is a state issue. It always has been and always will be. It is a privilege like a drivers license, and not "right" as the Left, Liberals, Obamaist, and Socialist running the state house, state senate, and the AG's office in St.Paul, along with the house, senate, and white house deem it to be.