#HCR - why those conservatives blathering on about unconstitutionality are wrong

[thestickywicket]

Never got to this when I wrote my first, ranty post, but here are my thoughts on the various arguments that healthcare reform (as signed into law today, OMG!) is unconstitutional.

Edited 3-25-10 to add linked sources.

So there's a lot of anger from the conservatives that OBAMACARE is making everyone buy healthcare or pay a penalty tax and KILLING OUR FREEDOMSSSS!!!! And I've read and heard the argument that NEVER BEFORE has the federal gummint forced individuals to purchase things from private industry (note: this is ETA: not* /ETA true, and we could've avoided that by going single-payer) and that now there will be a Soviet Tank in Every Yard!

Also, conservatives think that this whole SOCIALIST OBAMACARE is unconstitutional.

Here are the relevant constitutional provisions:

• The Constitution says Congress can regulate interstate commerce; this power has been interpreted very broadly, and is the basis of the majority of their legislation. [Art I Sec 8]
• The Constitution also gives Congress the power to tax (and spend) for the general welfare.[Art I Sec 8]
• The Tenth Amendment says that all powers not expressly granted to the federal government remain with the states, and with the people. [Tenth Amendment]

HCR -- according to the conservative types, and also according to the two lawsuits filed today (one by Virginia [PDF], the other by Florida, plus SC, NE, TX, UT, LA, AL, MI, CO, PA, WA, ID, and SD [PDF]) -- violates one or all of the above because:

• Health insurance reform is not commerce-related (this is easily disproved as it's a significant percentage of GDP and the insurance companies operate in multiple states).
• Okay, well, even if it is commerce-related, forcing someone to PURCHASE a product is qualitatively different than any other commerce-related law they've passed (this is the only interesting piece of these lawsuits ETA: see note re: Militia Act below /ETA).
• Fine, but this penalty tax is directed at particular people (and not levied on all citizens or on income) and therefore exceeds the taxing power of Congress (Congress has broad taxing powers).
• The states don't want to do this (and may have already passed state laws saying NEENER NEENER, we don't have to do this!! -- looking at you, VA), and they can refuse based on the Tenth Amendment (this is by far the flimsiest and worst argument, as it's essentially a form of nullification, which has been summarily rejected by the Supreme Court, from the Virginia and Kentucky resolutions, to the post-Brown v Board of Ed attempts to avoid de-segretation).

I think I'll leave it there, because I'm pretty sure y'all won't care to read my thoughts on the controlling precedent for Commerce Clause jurisprudence. :) But here's a more detailed summation of the two lawsuits, if any of you care to read more:

Virginia Lawsuit: In anticipation of the healthcare reform bill(s), Virginia passed a law that says its citizens are not required to purchase health insurance, or be liable for any tax/penalty for not purchasing health insurance. The lawsuit alleges that this state law attempting to nullify PPACA is valid despite the Supremacy Clause because PPACA is unconstitutional, and asks that the courts strike down the entire PPACA (because the individual mandate is an essential and inseparable piece of the overall law).

Virginia makes two constitutional arguments:

1. Congressional powers under the Commerce Clause (Congress may regulate economic activities that affect interstate commerce) do not include the power to require citizens to purchase goods or services;


2. Congressional powers under the Necessary & Proper Clause (Congress may regulate non-economic activities) do not include the power to require “a citizen-to-citizen subsidy or redistribution.”

ETA: Saw an interesting note today - VA probably doesn't have standing to sue based on harm to individual Virginians. /ETA

Florida et al Lawsuit: The Florida lawsuit is a longer and more straightforward challenge to PPACA. Instead of passing a state nullification law (though efforts are ongoing in Florida and at least one other state to enact such laws), the Florida suit simply argues that several provisions of PPACA are unconstitutional. [Florida also argues at length that changes to the Medicaid program and qualifications will impose a significant financial burden on the states - this is not a legal argument, and is not addressed further in this discussion.]

Florida makes three constitutional arguments:

1. PPACA violates Article I (including Commerce Clause and Taxing & Spending Clause) by: (a) requiring citizens to purchase goods or services, (b) taxing certain citizens who do not purchase those goods or services, and (c) by compelling States to pay increased Medicaid costs when uninsured individuals are “coerce[d]” into joining Medicaid.


2. PPACA violates Article IV, Sec. 4 (guaranteeing a republican form of government to every State in the Union) by requiring state to establish insurance exchanges and altering the Medicaid program.


3. PPACA violates the Tenth Amendment (all powers not delegated to the federal government are reserved to the states, and to the people) by: (a) “commandeering” the states “as agents of the federal government’s regulatory scheme”; (b) coercing individuals to enroll in Medicaid; and (c) by denying States’ interest in the freedom, public health, and welfare of their citizens (by denying States the ability to allow their citizens to make their own healthcare decisions without government interference).

The strongest argument in each lawsuit is that compelling individuals to purchase a good/service or pay a penalty tax exceeds Congress’s authority under the Commerce Clause (and the Taxing & Spending Clause). Depending of course on the composition of the Court when one or both of these lawsuits reaches it, PPACA is unlikely to be overturned on Constitutional grounds. The Court has approved an expansive scope of Commerce Clause powers beginning with the New Deal cases, requiring that the activity to be regulated is a channel or instrumentality of interstate commerce, or the activity to be regulated substantially affects interstate commerce.

*ETA: George Washington, of all people, signed a law requiring every citizen to buy a gun, ammunition, a knapsack, etc.: The Militia Act of 1792. OOPS!