Health Care Reform and the Constitution

Thursday, March 25, 2010

Opponents of health care reform have indicated that the proposed Bill is unConstitutional or that portions of it are, specifically the part that madates that people get coverage. Some states have indicated that they will sue and I have seen plenty of comments from pundits, politicians, and assorted others that are trying to convince me of the unfairness and offensiveness of this Bill. Some are unable to articulate any specific reason as to how it offends the Constitution, while others suggest that health care does not fall under one of the enumerated powers and therefore the feds lack the authority to implement this kind of plan. Supporters claim that it falls under the broad federal area of Interstate Commerce.

I recall a lecture from Con Law I where we were discussing Interstate Commerce and the various cases that led up to our current understanding. This was pre-Raich, mind you, and I asked the professor what exactly qualifies as "interstate commerce". His answer (I am paraphrasing here) was that it was pretty damn near anything the government wanted to call interstate commerce. Understanding this, I had serious doubts as to any court challenge of the individual mandate part of HCR. Orin Kerr over at Volokh, who is way more of Constitutional expert that I am, agrees and points out the odds of a successful challenge:

With all this blogging here at the VC about whether the courts will invalidate the individual mandate as exceeding Congress’s Article I authority, I thought I would add my two cents by estimating the odds of that happening. In my view, there is a less than 1% chance that courts will invalidate the individual mandate as exceeding Congress’s Article I power. I tend to doubt the issue will get to the Supreme Court: The circuits will be splitless, I expect, and the Supreme Court will decline to hear the case. In the unlikely event a split arises and the Court does take it, I would expect a 9–0 (or possibly 8–1) vote to uphold the individual mandate.

He has some other points to make about what he thinks about the mandate and modern incarnation of IC. I tend to mostly agree with him, though I can see the logic behind the mandate. What are your thoughts?


Bob 11:10 AM  

It almost seems like a taxation issue. You can go without insurance coverage, but you will pay a fine, which is designed to pay for your care in the event that your uncovered ass ends up in the emergency room.


BTW-I was excited to see this post. Yesterday in the Michigan House, there was an effort to amend the state constitution to attempt to opt-out of the federal plan. Many conservatives stood up and declared the HCR bill unconstitutional, but I never felt any of them knew what the hell they were talking about.

steves 12:38 PM  

One could make the argument that it was unConstitutional 100+ years ago, but even a cursory reading of a few cases since then would show that it would pass muster today. I think that one could make an argument that IC is way too expansive, but the reality is that includes a great deal today.

Monk-in-Training 12:54 PM  

I have friends here yelling about violations of the 10th Amendment (that has been pretty much inactive since the War of Northern Agression) and Section 4 of Article 4 (Republican form of government).

Both are odd things to ground a case on, but hey, I don't understand these Bubbas, and I was born here in the South.

Streak 4:38 PM  

I have a conservative lawyer friend who swears this is clearly unconstitutional. I don't see it, either, and appreciate this post. Think Bob's concise explanation is a good one.

I am afraid that Oklahoma will opt-out someway just out of ignorant spite. It is my hope instead that as teh dust settles, and people find out what this bill does (and perhaps more importantly that it does not create gas ovens for little old ladies) even people here in Oklahoma might want access to healthcare coverage.

steves 9:00 PM  

To be fair, I haven't read any of the complaints, so there may be a decent argument in there. I just don't think they will get anywhere with the IC argument and I just don't understand why anyone thinks it is "clearly" a violation of the Constitution. To be so would require the court to completely ignore what it has already ruled.

Monk-in-Training 5:21 AM  

This is a quote from one of my good friends, Pastor of a Southern Baptist Church near me:
What we got was a closed door hidden agenda crammed down our throats.

Effectively, the bill is illegal. It is illegal because it is unconstitutional.

While (obviously) I am not a Constitutional lawyer, a cursory examination of the Constitution reveals, to me at least, that it violates Article 4 Section 4 and the Tenth Amendment.

In my view, it is almost completely disconnected with reality. This man is kind, smart, world traveled and educated. I don't understand how he could hold these sincerely held beliefs, except that he is so much a part of our culture here. I am just showing you this, because it might help you see what Streak and I contend with in everyday life here. :)

steves 7:24 AM  

Let me back up for a minute. I think that one could make a persuasive argument that an individual mandate is not one of the enumerated powers and therefore violates the 10th Amendment, as it is a power reserved to the states. Unfortunately, it is, at best, an academic argument.

Since the 1930's, the Courts have taken an expansive view of Interstate Commerce (IC) and have held that a farmer growing crops for local sale and a person growing marijuana for their own use fall within IC. If that is IC, then healthcare sure is. For the court to go against this would take some major "judicial activism". ; )

What we got was a closed door hidden agenda crammed down our throats.

I don't think this happened, nor do I think that any procedural rules were violated. I am sure Smitty can speak more on this topic.

Effectively, the bill is illegal. It is illegal because it is unconstitutional.

It wouldn't be illegal, but null and void. The Constinutionality would be up to the courts to decide.

While (obviously) I am not a Constitutional lawyer, a cursory examination of the Constitution reveals, to me at least, that it violates Article 4 Section 4 and the Tenth Amendment.

That part of the Constitution guarantees a republican form of government. In other words, it would prevent the State from making policies that would be contrary to a republic. There isn't a whole lot of caselaw on this that I am aware of, but I fail to see how this would apply, as our elected representatives have acted within the scope of their duties.

I am just showing you this, because it might help you see what Streak and I contend with in everyday life here. :)

That is too bad. We have people like that here, but I seem to be able to avoid them for the most part. The rest of my family is either apololitical or fairly moderate.

Smitty 7:52 AM  

A closed door hidden agenda, they say? Do they mean the hundreds of newspaper articles and FOX/CNN news programs dedicated to enumerating the contents of the bill? Or do they mean the 10 total notes I got from my Congressman and Senator enumerating to me, because I care enough to be on the email lists, the contents of the bill?

All their statement a talking point they heard on a radio show. It doesn't actually mean anything.

As for the "secret" processes used to pass the bill...well, the opposite party used them many times. There is a blog post I found somewhere that discussed how many times "reconciliation" has been used, by whom, and for what purpose. But in this case, it was never used!! They just straight-up voted on a fucking bill! No secret process! A wide-open, EXTREMELY well-televised and publicized vote. I stayed up until 1:00 a.m. watching universally-available C-SPAN as the vote concluded.

As for "crammed down our throats" I guess I wouldn't consider 14 months worth of open public debate "crammed." Cramming, in legislative terms, is what happens when a bill is introduced on Day 1 of Week 1 and ultimately winds-up on the Executive's desk on Day 4 of Week 2. What we have here, though, is a heavily-compromised bill that the Libs, when they stop being dizzy about it, will probably be horrified by.

I would ask them what they mean by a "closed-door hidden agenda" and by "crammed down our throats." Given what I said above, neither of those statements is factually correct.

Bob 8:33 AM  

"What we have here, though, is a heavily-compromised bill that the Libs, when they stop being dizzy about it, will probably be horrified by."

What parts will the libs be horrified by? The mandate?

Bob 9:10 AM  

538 has a decent post and discussion on the same topic:

Streak 9:52 AM  

I think liberals will ultimately be unhappy with how well insurance companies and big Pharm do under this reform.

It is worth remember, as I suggested in another conversation, that this bill is incredibly conservative under any other context. Its most radical idea is that people deserve access to insurance, but the methods are quite market friendly and conservative. I mused to a friend that LBJ would have never considered something this conservative and Nixon could have easily embraced it.

Goes to show how unhinged the right has become that Boehner can refer to this as Armageddon.

Bob 10:04 AM  

"Nixon could have easily embraced it. "

It might be too conservative for Nixon. As David Frum posted a few days back it resembles a Clinton plan alternative created by the Heritage Foundation in the 1990’s.

I think you are correct that if insurance companies do well, liberals will come unglued. Often during this debate it was more important for liberals to punish the insurance industry than it was for us to provide health care to Americans.

The biggest complaint I hear from liberals is about the mandate. On that issue they just need to grow up. We cannot mandate coverage for those with preexisting conditions (the sick) unless we make people buy insurance while they are still healthy. Without the mandate everyone will buy insurance at the point they are diagnosed with cancer or some other ailment. At that point we might as well pay cash for our treatment because insurance will be the same price.

Streak 10:07 AM  

Interesting. I don't think I have heard liberals complain about the mandate. I agree with you, it simply makes sense. And as many have noted, it isn't as if we are sending out the FBI to arrest people who don't buy insurance. It is an attempt to recognize that in this issue of healthcare, we are all in the same pot, eventually.

steves 10:08 AM  

I think that liberals need to ask themselves if we are better off with this or without this and are more people covered. If the answer is yes, then we should be satisfied and continue to find ways we can improve it.

I understand the need for mandated coverage. It is more cost effective to treat people with insurance than it is for taxpayers to pay for the uninsured when they show up at the ER with some kind of catastrophic injury or disease.

Streak 10:40 AM  

Oh, absolutely, Steve. and I think that is exactly what people like Kucinich did when it came to the vote. I am always reminded that Social Security passed initially without covering most African Americans (not excluded on race, but on types of work, mind you). We fixed that.

We will have things to fix from this reform bill. No doubt. But it is a start.

Jill 5:25 PM  

My favorite part of this whole post-enactment hulabaloo is the attempt by the states to nullify the law. They're trying to pass state laws to declare the federal law invalid in their states.

For those of you who speak law-nerd, there's an obscure legal principle known as "Yeah, you can't do that. Dumbshit." The question of whether an individual state can nullify a federal law has been pretty well settled since 1799.


Streak 5:34 PM  

Certainly seemed to be settled with Calhoun's ill-fated attempt at nullification in the 1830s, one would think.

I am stunned by the image of patriotism under the guise of not following laws--as long as they are passed by Democrats.

Andy 2:15 PM  

Whoever you are, Jill, you are my hero! Seems to me that the Supremacy clause rules here.

There was an interesting debate between two people on my facebook page. Take a look if we are FB friends (started on march 21). Here are the highlights:

liberal: Its funny that this bill is, in large part, the proposal the GOP made in 1994 as a response to HillaryCare. But now that Dems support it, the GOP is opposed. David Frum really summarized it best:

conservative: like Nazi Germany, people will be jailed for not having the proper health care papers…Banks and Business owner that are now the enemy of the people (state)….Does that sound familiar? We shall see, if I wrong - good for the country, but if I have it right then " DO YOU HAVE YOUR PAPERS"!

liberal: Jailed? Are you talking about the actual bill, or the bill you heard about from some crazy person that doesn't know what they are talking about?

conserv: Failure to pay your taxes (which will include fines if one can not show healthcare coverage) CAN RESULT IN JAIL, it is already the law. NO new bill is needed! Under IRS rulings you must properly fill out your taxes and pay the tax or fine that may be owed, thus anyone who cannot prove they have healthcare coverage or chooses to fill out the ... See Moresection on healthcare cooverage can end up in jail. THEREFORE ONE COULD BE PROSECUTED UNDER TAX EVASION LAWS. So I guess the crazy person you are referring to is FDR?

lib: Well sure. Under that line of logic, you can go to jail for working too. Or for selling a house. Have you been complaining for the last 50 years about those things too? Or is just it health care that you're worried will send you to jail? The reality of course is that, in each case, you'd be going to jail for committing fraud and evading taxes, not for selling a house or working or not buying health care.

cons: The stark difference is that the government doesn't tell you that you must own a home, you must work, or anything else. Now we are told we must have health insurance, and make such documenation known to the mighty IRS if we want to continue to enjoy the God given freedom and liberty bestowed upon us by our creator.

lib: Actually, that's not true. If you don't work, you're also not required to get health insurance since you're exempt due to the income requirement. So you're actually only required to get insurance or pay a health care tax if you choose to work. Just as you're required to pay income, Medicare, and Social Security taxes if you choose to work.

cons: guess we just stop working and let the money come down from heaven.....So I take it I already paying for you?

lib: I pay for my own individual health insurance right now. I also subsidize the uninsured - I will be happy to see them insured so I will no longer have to pay for their emergency care because they couldn't get a simple problem solved at the doctor. I will also be happy to see that my ... See More individual care will no longer be able to be yanked from me if I get seriously ill and am no longer profitable. I will further be thrilled to be able to actually compare and contrast health care options and force providers to compete for me instead of participating in the currrent highly defective and inefficient private health care market. some people actually took the time to understand the bill and the problems in the current health care system, instead of repeating tea party talking points about nazis and whatever else. I've noticed you have yet to even post a logical, rational criticism of the bill (of which, there are plenty). Instead, you just went with the Glenn Beck talking point strategy.

And it went on and on...

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