an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Today’s federal ruling striking down the Obama health care law is powerful proof that the law is, in fact, constitutional.
This apparent paradox emerges from the bizarre new legal theories that Judge Henry Hudson had to invent in order to invalidate the law – theories that, if taken seriously, would randomly destroy large parts of federal law. The decision concerned the requirement that most Americans purchase health insurance or pay a penalty. Without this mandate, the law’s protection of people with preexisting conditions would mean that healthy people could wait until they get sick to buy insurance. That would bankrupt the entire health insurance system, because no one would be paying into the pools. Congress decided to charge those people for the costs they impose on their fellow citizens.
The Constitution gives Congress the power to “regulate Commerce . . . among the several states,” to “collect Taxes,” and to “make all Laws which shall be necessary and proper” to carry out its responsibilities. The commerce power has been understood for years to permit regulation of the national economy, which, the Supreme Court held in 1944, includes insurance. The mandate is also valid under the taxing power, which is not limited to objects of interstate commerce. The Court held in 1950 that a tax does not become unconstitutional “because it touches on activities which Congress might not otherwise regulate.” In carrying out its powers, Congress is given a broad choice of means by the necessary and proper clause; that was settled way back in 1819. This is why the two other federal district courts that previously considered challenges to the law had no problem throwing the cases out.
Judge Hudson devised novel theories to get around all this well-settled law. First he held that the decision to go uninsured, and to rely on emergency rooms to provide care, is not economic activity and so is beyond the commerce power, even though it has obvious economic consequences. “If a person’s decision not to purchase health insurance at a particular time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically, an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.”
By the same “logic,” if I can’t pick up a pencil with my brain, then it follows that I can’t do it with my hand either. Try this reasoning in a few other contexts. Chief Justice John Marshall noted in McCulloch v. Maryland (1819) that, unless Congress could choose the means to carry out its powers, the enumerated power “to establish post offices” could not entail the ability to punish those who rob the mail. By Hudson’s logic, however, if locking up mail robbers is no part of the operation of a post office, then an attempt to do that under the Necessary and Proper Clause is equally offensive to the Constitution. If growing marijuana for one’s own consumption is not regulable economic activity, then it too is immune from federal law.
Judge Hudson correctly observes that exercises of the Necessary and Proper power “must not violate an independent constitutional provision.” But then he reads this to mean that it may not go beyond the specifically enumerated powers. The mandate is unconstitutional because “no specifically articulated constitutional authority exists to mandate the purchase of health insurance.” This does more than implicitly overrule McCulloch v. Maryland. It reads the Necessary and Proper power out of the Constitution, because it won’t allow it to add anything to the enumerated powers.
Hudson followed the Florida court in declaring that the mandate is not a tax because some of the law’s sponsors denied that it was. As Gillian Metzger and Trevor Morrison have explained, this reasoning creates two remarkable new doctrines: federal courts have authority to police the public statements of politicians, and Congress must expressly invoke all possible constitutional bases for legislation. Both of these rules are unheard of, because they would pointlessly blow up large parts of the U.S. Code. This is constitutional interpretation undertaken in the spirit of a saboteur in wartime.
Near the end of his opinion, Judge Hudson raises a separate constitutional concern, almost as an afterthought. “At its core, this dispute is not simply about regulating the business of insurance – or crafting a system of universal health insurance coverage – it’s about an individual’s right to choose to participate.” Here he echoes the Florida Attorney General, who frankly argued for a substantive constitutional right “to make personal healthcare decisions without governmental interference.”
The Supreme Court rejected the purported “inherent right of every freeman to care for his own body and health in such way as to him seems best” in 1905, in Jacobson v. Massachusetts. The claimant there asserted that mandatory smallpox vaccination violated his rights. It is true that vaccination was an imposition on his liberty. Dying of smallpox is also an imposition on one’s liberty.
Jacobson was decided the same year as the infamous Lochner v. New York, in which the Court invented a right of employers to be free from maximum hours laws. The right that Republicans are now asserting was too much even for the Lochner Court. Was Jacobson wrong? Does the Constitution protect the smallpox virus?
Judge Hudson is right that the Act is unassailable unless we adopt these strange and destructive notions. It is hard to imagine more convincing evidence of the law’s obvious constitutionality. Posted
by Andrew Koppelman [link]