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
Abbe Gluck abbe.gluck 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 msl46 at law.georgetown.edu
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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The most likely constitutional challenge will be that the individual mandate to purchase health insurance is unconstitutional because it forces people to buy insurance. Barnett omits to mention in his op-ed that the mandate is actually structured as a tax: if you don't buy insurance, you are assessed a tax for each month you fail to pay premiums. Barnett argues that individual mandate must be unconstitutional because the government can't require people to do anything; however, the government can make you pay taxes. It does so every year. Congress pretty clearly has the power to pass such a tax under its powers to tax and spend for the general welfare. This is an easy case for constitutionality.
Congress also has the power to require the individual mandate under the Commerce clause, despite Barnett's objection. That is because Congress can regulate economic activities that have a cumulative economic effect on interstate commerce, and as Justice Scalia pointed out in Gonzales v. Raich (a case, by the way, that Barnett himself litigated and lost in the Supreme Court), Congress can regulate even non-economic activities if it believes that this is necessary to make its regulation of interstate commerce effective. As I've explained elsewhere
Critics charge that . . . people [who do not buy insurance] are not engaged in any activity that Congress might regulate; they are simply doing nothing. This is not the case. Such people actually self-insure through various means. When uninsured people get sick, they rely on their families for financial support, go to emergency rooms (often passing costs on to others), or purchase over-the-counter remedies. They substitute these activities for paying premiums to health insurance companies. All these activities are economic, and they have a cumulative effect on interstate commerce. Moreover, like people who substitute homegrown marijuana or wheat for purchased crops, the cumulative effect of uninsured people’s behavior undermines Congress’s regulation — in this case, its regulation of health insurance markets. Because Congress believes that national health care reform won’t succeed unless these people are brought into national risk pools, it can regulate their activities in order to make its general regulation of health insurance effective.
A second theory for challenging health care reform is that special deals for Louisiana and Nebraska violate the General Welfare Clause because they only benefit particular states. These features will be gone if Congress passes a reconciliation measure, which the House will vote on today. If a reconciliation bill is not passed, Barnett points out, Congress would have to show why these special deals benefit the entire union.
Even if Congress couldn't come up with a reason, the proper remedy would be to hold these special deals unconstitutional, not to declare the entire health care reform act invalid. So here's the irony of Barnett's suggestion: If opponents successfully attack these special deals, they will actually strengthen health care reform because in effect they will have gotten the courts to perform the same function as the reconciliation measure.
A third possibility is that states will pass laws exempting their citizens from the individual mandate. Barnett correctly sees that this strategy is itself unconstitutional under the Supremacy Clause.
A fourth strategy is a constitutional amendment. Once health care reform is passed, however, it is unlikely that the public will support an constitutional amendment eliminating it. Such an amendment would require approval by three fourths of the states and two thirds of both houses of Congress. But as Barnett suggests, if health care reform ever becomes that unpopular, Congress will simply repeal the legislation first.
A fifth strategy is to attack the House rule for passing the bill. But as Barnett points out, the House decided yesterday not to use "deem and pass" and so this objection is now irrelevant. (It would not have succeeded in the courts in any case, because of the enrolled bill rule).
Barnett's final suggestion is that the Supreme Court might simply decide that the Democrats didn't play fair and strike down health care reform in the same way that it decided that the Democrats didn't deserve the presidency in Bush v. Gore.
Barnett is ambiguous about whether he is actually advocating a second Bush v. Gore or simply arguing that the five Republican Justices on the Supreme Court might be shameless enough to attempt a second version of Bush v. Gore. (It's sort of like he is saying, "nice health care bill you've got there; it would be a shame if anything happened to it.")
I assume that Barnett actually isn't advocating it. Bush v. Gore was widely derided as a travesty of legal reasoning, and the Supreme Court has avoided citing it or mentioning it in its opinions since. Whether or not the individual Justices viewed their actions this way at the time, many people saw Bush v. Gore as five conservative Justices making implausible legal arguments to benefit the interests of a particular political party which they happened to favor. And not to put too fine a point on it, Bush v. Gore helped smooth the way to the Bush Presidency, the dissipation of the federal budget surplus, the war in Iraq, presidentially approved torture, the cratering of the economy, and enormous budget deficits through reckless overspending by the Bush Administration. Bush v. Gore was, in hindsight, not only deeply flawed judicial reasoning, but led to a disaster for the country. Bush v. Gore is an example of what the Supreme Court and federal judges shouldn't do.
If opponents of the bill are reduced to wishing for a second Bush v. Gore, they, and not their opponents, have truly given up believing in American democracy.
UPDATE: In an e-mail to me, Barnett confirms that his reference to Bush v. Gore "was simply about predicting 5 votes." He writes: "If the conservative justices are as lawless as accused, the bill's supporters should worry. But if not, not. Which is it?"