The Constitutionality of Health-Care Reform

As it becomes increasingly clear that some federal scheme to regulate the health insurance industry will soon go into effect, Conservatives appear ironically poised to seek help from those activist judges they're always whining about. See, for example, this article in the Wall Street Journal by Orrin Hatch and Kenneths Blackwell and Klukowski.

It claims that the proposed Health Care bills would be unconstitutional for three reasons: 1) Congress has no constitutional authority to force individuals to buy health insurance; 2) Spending arrangements cut by the legislators who signed the bill run contrary to the "general welfare;" and 3) Requiring states to create things like benefit exchanges amounts to unconstitutional commandeering of state government to operate a federal program.

I live in something called "reality," so I'm not going to bother playing pretend with item #2. But let's examine the other two claims.

First, although I haven't yet received my Con Law grade, mandating health insurance seems like a perfectly legitimate exercise of Congress's power to regulate interstate commerce, at least as it has traditionally been interpreted by courts. Orrin and the Funky Bunch claim that the Lopez ruling could be relied on as precedent to overturn such a provision, because the Court

rejected a version of the commerce power so expansive that it would leave virtually no activities by individuals that Congress could not regulate. By requiring Americans to use their own money to purchase a particular good or service, Congress would be doing exactly what the court said it could not do.

Um, no it wouldn't. I'm going to be polite and call this a very broad reading of the Lopez decision, which in fact invalidated a law prohibiting gun possession within 1,000 feet of a school zone primarily because gun possession could not properly be considered economic activity. Accordingly, regulating an economic activity, like purchasing Health Insurance, would be "exactly" what the Court said Congress could do. Thanks for playing, Orrin. (Also, capitalize "Court," you big jerk.)

Setting aside Lopez, the column claims that requiring individuals to purchase insurance is an unprecedented expansion of the commerce power, since it forces people to participate in a certain economic activity instead of regulating activity in which they choose to engage. This argument strikes me as more novel, but no more likely to succeed. Congress requires us to pay taxes, which could be considered participating in an economic activity. It also requires us to purchase passports in order to travel abroad; to pay for stamps in order to send mail; to pay fees in order to hunt, fish, or access federal parks; and to pay gas tax at the pump or indirectly on airline tickets, bus passes, etc. I suppose it's conceivable that someone may choose to not participate in any of these activities, but that person lives alone in the woods and is probably planning to blow up a federal building anyway.

The law may in fact be unprecedented, but I do not think a court will view it as qualitatively different from these other schemes, despite its doing away with the illusion of choice.

Finally, the article argues that forcing states to create benefit exchange programs but not as a condition of receiving some federal funding runs afoul of federalism. It cites the "commandeering" cases (Printz and New York v. US) and general principles of the federal-state dichotomy. The authors may have a point here, but I think we'd need more facts about the bill to know for sure. Printz and New York dealt with requirements on state government more specific than simply establishing some program of benefit exchanges. Also, the article mentions that the bill would allow the Secretary of Health and Human Services to create these programs if the states refuse, so arguably it doesn't require state officials to do anything.

Overall, I think the authors' specific arguments are cursory at best, but they have a point that the Bill presents some unexplored Constitutional territory. Do any of you other savvy Con Law scholars care to take a shot at mapping it?