I made some dismissive comments about the court challenges to the health care bill in this space last week. But I now think the question merits more serious consideration and I’ve been looking for some good arguments that the bill violates the Consitution.

The lynchpin of the few interesting arguments arguments I have found is that not buying health insurance is inactivity rather than activity, and that it’s decisively different for Congress to try to regulate inactivity related to interstate commerce than to regulate activity. That’s an interesting, if ultimately somewhat specious, claim but it would be a very thin reed even for the conservatives on this Supreme Court to throw out the most comprehensive piece of public regulation passed in two generations. Still, given recent history, I can’t utterly dismiss the idea that it might do so.

Of course for many decades conservatives have wanted to rein in the expansive reading of Congress’ power to regulate commerce the courts adopted after the Supreme Court’s disastrous confrontation with the New Deal. And it’s perfectly clear that many conservatives see the health care lawsuits not only as a way to vitiate health reform but restrict Congress’ power to regulate commerce. That would, of course, also undermine the government’s power to regulate the economy in the public interest – which is exactly why conservatives have long wanted to limit Commerce Clause powers.

But it is a long-settled legal principle that Congress can regulate activities, including intrastate and not directly commercial activities, under the Commerce Clase if those activities are clearly related to interstate commerce. In a couple rulings in 1995 and 2000, the high court acted to limit that power – but only on the grounds that the matters in question were only incidentally related to interstate commerce. Since no one can deny with a straight face that health care and health insurance are strongly related to interstate commerce, those precedents don’t apply here.

So the wrinkle now is for conservatives to suggest that the mandate that individuals buy insurance falls outside Congress’ power because it regulates inactivity (the decision not to buy insurance) rather than activity related to commerce (which Congress clearly has the power to regulate). To let Congress compel activity under the Commerce Clause, some of them suggest, would give it an endless and improper degree of authority to require us to do anything Congress might think relevant to interstate commerce.  The clearest version of this argument I’ve seen comes from Georgetown professor Randy Barnett from the Washington Post (March 21). Here’s the link to Barnett’s piece.

Link to Randy Barnett\’s essay on the health mandate

This is an interesting argument and one that I think is worth taking seriously. Could Congress, for instance, as some conservatives have suggested, under the same principle used to mandate health insurance mandate that we all buy a new car – since the sad state of the auto industry is surely an interstate commerce issue? And why is the health mandate different?

Of course, Congress can punish forms of economic inactivity. Under the Civil Rights Act of 1964, for instance, not renting a motel room to a black person can be sanctioned. But that’s a somewhat different case because the motel owner has chosen to enter a regulated industry while the guy in Virginia who doesn’t want to buy health insurance is just a guy living his life.

But what is new is often somehat novel, and the fact that a form of regulation is in some sense novel does not make it impermissible. And regulating the choice not to buy health insurance is very much like many things Congress routinely does under the Commerce Clause – more like them than unlike them really — even if it is distinguishable in some sense. Moreover, not participating in the health insurance market has well-known and very significant effects on the health system and imposes all kinds of costs on others. It seems capricious to suggest that there’s a bright-line distinction between regulating buying insurance and regulating not-buying it that makes the latter categorically outside the power of Congress when both buying and not-buying both have substantial effects on the market.

Indeed the fact that we all will all need health services at some point further undermines the distinction. As Simon Lazarus pointed out in his brief on the subject for the American Constitution Society, given that we all need such services not-buying health insurance is really a choice to pay for health services on a fee-for-service or self-insured basis (or just not pay the bills) rather than through insurance. To call the one choice an activity and the other a form of inactivity is more a rhetorical trick than a genuine argument. Here’s the link to the ACS brief, which is the best general discussion of these issues I’ve seen.

Link to ACS brief on health care mandate

And this consideration clearly distinguishes the health care case from the mandate-to-buy-a-car hypothetical case cited above: a citizen can indeed choose not to buy a car and participate in the auto market but can’t really choose not to participate in the health market. That’s part of the reason all other health care systems in the developed world are in some important sense compulsory.

For these and other reasons (including the fact that the mandate doesn’t kick in until 2014 and applies to individuals rather than states, making it unclear why the state AGs should even have standing to sue), the constitutional argument against the mandate is weak. It would be an act of radical conservative judicial activism (which isn’t an oxymoron, even though many conservatives would like you to believe that it is) to vitiate the health reform on the basis of the activity/inactivity distinction.

But this court is clearly open to such radical steps.  It departed sharply from tradition in declaring an individual right to gun ownership in 2008 (District of Columbia vs. Heller). It departed sharply from traditional jurisprudence on abortion rights in upholding the partial-birth abortion ban in 2007. And then there’s this year’s quite radical Citizen’s United decision, in which the court departed from a long tradition of allowing stronger regulation of corporate speech to vitiate a popular law limiting campaign spending by corporations.

Indeed, I honestly think that striking down health reform on the basis of the activity/inactivity distinction would be a better argument (which is not to say that I think it’s a good one) than the court majority had for the Citizens United decision. In that ruling the court, the court’s majority basically just  pretended that regulating some classes of speakers differently from others was impermissible despite the long tradition of Congress and the courts doing just that (see my March 9 posting below).

Still it does seem unlikely that the court would reopen the destructive judicial Commerce Clause debate in such a radical way on such a thin basis. But recent history suggests that one’s confidence in that assumption can only go so far.

Conservatives like to argue that the high court’s reticence about checking Commerce Clause powers leaves those powers dangerously unlimited. Apparently they didn’t follow the recent health care debate.

 That debate should have reminded us all that (even with a big Democratic majority and a charismatic, popular Democratic president) the political checks on Congress’ power to regulate commerce remain very strong indeed. It took a gigantic, heroic effort to pass what is objectively a modest set of reforms that reinforce rather than radically revise our existing hybrid private-public health system as they add better regulation to protect the public interest. It’s not as if there’s reason to believe Congress is about to start running around willy-nilly radically undermining private power over economic activity (even if some of us would like to see some of that activity).

Given these strong political checks and the disastrous history of the court’s meddling with Commerce Clause issues, the court should leave the checks on Congress’ power here to the political process.

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