The health care bill that Congress passed recently is now being challenged by 18 states to date. The constitutionality of the bill will be a close call, with strong arguments on both sides. As former staff director of the bipartisan Commission on the Bicentennial of the U. S. Constitution, I wish here to present – as impartially as possible – both sides of the case, believing along with John Stuart Mill that “he who knows only his own side of the case knows little of that.”
White House Press Secretary Robert Gibbs reported that its counsel opined that the individual mandate requiring all to purchase health insurance is constitutional under the commerce clause. True or wishful thinking? The nub of the controversy seems this: Will the Supreme Court, citing the commerce clause, permit Congress to regulate inactivity – that is, the absence of commerce – by forcing citizens to buy a certain private-sector service or product?
But to this argument, defenders of the bill will counter that the aim of the commerce clause is not to regulate economic inactivity but to regulate health insurance and health care – an altogether different focus.
In response, opponents of the bill will argue that health insurance is a 10th Amendment states’ right, not a federal government right. States currently regulate health insurance.
As if matters aren’t confused enough, the Supreme Court has taken polar positions on the commerce clause. In Gonzalez v. Raich (2005), it ruled that the commerce clause can be used to regulate home-grown marijuana even if only for personal use. But in U. S. v. Lopez (1995), it ruled that the commerce clause does not authorize federal law banning guns in local school districts.
The constitutionality of the individual mandate will also be tested under the 16th Amendment, which grants Congress the broad “power to lay and collect taxes on incomes.” Opponents of the individual mandate will argue that the mandate is not a tax, but a premium to insurance companies or a fine. Defenders of the mandate will counter that this premium or fine amounts to a tax, falling under the jurisdiction of the 16th Amendment. Also cited will be the enumerated power of the “general welfare” clause.
Opponents of the individual mandate will argue that the 16th Amendment, if used to permit the mandate, discriminates against freely choosing citizens who don’t want health insurance. But defenders will counter that the 16th Amendment already discriminates broadly: a graduated income tax is discriminatory. Mortgage deductions or deductions for children are discriminatory. We see a host of other discriminatory taxes whenever we file our yearly taxes.
Defenders of the individual mandate will argue that there are well established precedents for government coercion. Few people these days think that coerced social security payments or withheld Medicare premiums are unconstitutional. Car insurance is often cited, though that analogy fails: such is a mandated liability insurance for driving on roads and possibly getting into an accident – quite different from a mandated health insurance for simply living and breathing on American soil. And car insurance is a 10th Amendment states’ right, not a federal government right.
There is another unknown that could well enter into the matter of the constitutionality of the health care bill. The Supreme Court may elect not to meddle – on such an enormous, radical scale – into the domains of two constitutional branches of government: the presidency and Congress. Marbury v. Madison established the court’s power to rule an act of Congress unconstitutional, but the court in the health care matter might opt for recommending legislative relief.
Defenders of the bill will argue that the Constitution’s supremacy clause states explicitly that federal law shall be the “supreme law of the land.” Opponents will counter that federal law cannot be the supreme law of the land if that law is found unconstitutional, as in Marbury.
If any part of the health care bill is found unconstitutional, the whole bill fails because it contains no severability clause. Consensus holds that it will take two years for the constitutional challenge to progress through the federal district court, then the appellate court, and finally the Supreme Court. In the meantime, it is possible that an injunction from the district or appellate courts could put the entire bill on hold until the injunction is lifted or the case finally resolved.
My own view is that the Supreme Court will rule the health care bill unconstitutional because never in the history of jurisprudence has the court required a citizen to buy a certain private-sector product or service and never has it defined an insurance premium or resulting fine as a tax.
Ronald L. Trowbridge, Ph. D. is a Senior Fellow at the Texas Public Policy Foundation, a non-profit, free-market research institute based in Austin. He served as chief of staff to the late U.S. Supreme Court Chief Justice Warren Burger and to the Commission on the Bicentennial of the U.S. Constitution.
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