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Healthcare Constitutional?

The fight over the Healthcare Bill passed by Congress in early 2010 is not over. It won’t even be resolved in 2011. It has, instead, moved across the street to the Judiciary, where it will eventually work its way up to the Supreme Court. However, don’t be quick to dismiss this as sour grapes in the form of a  frivolous law suit. The issues raised in this struggle are significant and warrant some close attention, as the Bill’s survival hinges on novel questions of constitutional law.

Before I proceed, let me make clear that this post pertains only to the constitutionality of the Healthcare Bill. It is in no way a commentary on whether the Bill should or should not have been passed. Rather, I intend to discuss whether the Bill satisfies the standards articulated in the U.S. Constitution. I’m an attorney, not a politician.

It may come as a surprise to some to learn that the Federal Congress cannot simply pass any law. Indeed, most laws passed by Congress must be passed under an explicit provision of Article I section 8. (see: http://www.usconstitution.net/const.html#A1Sec8). However, the text of the Constitution, in conjunction with some inveterate Supreme Court decisions, have afforded flexibility in how Congress may justify the constitutionality of proposed laws. More specifically, Congress need not pass a law which directly satisfies one of the grants of power in Article I section 8; it can, instead, enact laws which are “necessary and proper” to those ends.

Let’s have an example. Article I, Section 8, Clause 5 provides that Congress may “coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures.” Nowhere in this clause does it say, for instance, that Congress may enact a Bill which commissions research into how much it would cost to build a U.S. Mint in certain geographic locations. It simply isn’t embodied in the text.

Nevertheless, such a law, if challenged, would be found constitutional. While it does not expressly state that such a commission can or cannot be created, Congress may pass laws which are necessary and proper to the grants of power in Article I, Section 8. Accordingly, in our case, Congress could easily justify this Bill because such a commission would be legitimately related to the express power to “coin money, regulate the Value thereof…” In other words, Congress may generally pass laws which bear a rational connection to any one power in Article I, Section 8. So long as the law is related to one of those ends, it will be legitimate.

Undoubtedly, the clause used most often by Congress to pass laws is the Commerce Clause, which provides that Congress may “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The operative word in this provision is “commerce,” which the Supreme Court has interpreted broadly to mean most types of economic activity. You can see right now why this provision is so frequently relied upon by Congress. Economic activity by itself is broad, but when Congress may pass laws which bear a rational connection to commerce, few limits seem to exist.

The Commerce Clause has been interpreted to have two components: the first is the express grant to Congress to regulate Congress, and the second is the inherent limit on the States to inhibit interstate commerce (the so-called “Dormant Commerce Clause,” which is a subject for another time). Under established Supreme Court precedent, Congress is deemed to be lawfully regulating commerce in three situations: 1) when it regulates commerce at State borders; 2) when it regulates the instrumentalities (persons or things) of interstate commerce; 3) or when there is (a) economic activity which occurs entirely intrastate that has a (b) substantial effect on interstate commerce if (c) left unrelated.

To come full circle, then, the recently enacted Healthcare Bill will be adjudged constitutional if the Supreme Court finds that it is reasonably related to the regulation of commerce in one of these three circumstances. Two quick provisos. First, because Congress said in the Bill that it is acting under its Commerce power, it probably cannot defend the Bill on any other constitutional grounds (e.g., the taxing and spending power). Second, if one small part of the Healthcare Bill is found to be unconstitutional, the entire Bill will be struck down.” This is because both the House and Senate had to scramble to pass the Bill, and in their haste, neglected to include a “severability clause.” Such clauses generally provide that should a section of a Bill be found unconstitutional, the offending section is stricken, but the rest of the Bill remains. Because no such clause exists in the Healthcare Bill, one constitutionally offensive sentence can sink the entire Bill.

Now let’s analyze. The most dubious of the Bill’s provisions is the individual mandate, which requires individuals to purchase a certain type of healthcare or face an individual fine. Opponents of the legislation are already attacking this clause as the Bill’s Achilles Heel.  See http://www.cuccinelli.com/). Clearly, the mechanics of this mandate does not regulate commerce at State borders, nor does it really regulate the instrumentalities of interstate commerce. Even attorneys for the Federal Government have all but conceded this point in their court briefs.

The question, then, becomes whether requiring people living within a given state to buy health insurance is a regulation of economic activity that has a substantial effect on interstate commerce? The answer, it seems to me, is no. An individual, simply by virtue of existing, is not participating in interstate commerce. Moreover, it is questionable as to whether an individual’s healthcare is even economic. Sure, it has economic implications, but most things have economic implications. In fact, there is a whole legal school of thought based out of Chicago which analyzes the legitimacy of laws based on their economic impact. The Founders of our Country clearly did not intent to imprint such an expansive meaning in this clause — after all, a litany of specific, concise grants of power generally precludes a broad, robust grant of power.

Proponents of the legislation will be quick to point out that the Bill, once in place for some time, will ultimately have a substantial effect on interstate commerce. This argument is erroneous. An individual existing entirely intrastate does not affect interstate commerce. The Federal Government cannot pass this Bill and thus create an interstate market for the ultimate purpose of regulating it. A tacit condition precedent to the Commerce Clause, it seems, is that a market must preexist Congressional Regulation. Simply put: the market must exist voluntarily and independently of Congressional Regulation.If we were to accept as legitimate and constitutional the contrary, then essentially the commerce clause, and thus Congress, has no limits. The Congress could enact any law creating any sort of economic/commercial market, then create subsequent laws regulating it. No one grows weeds just to pull them.

One last note. I am of the opinion that there is a difference between “commercial” activity and “economic” activity. The Constitution uses the word “commerce,” not “economic” when discussing this grant of Congressional power. “Economic” came into the picture from a (in my opinion), misguided Supreme court decision. Commerce, as understood at the drafting of the Constitution, generally meant “trade” or an “active exchange between entities acting as merchants.” Economic activity, on the other hand, is much broader. Consequently, if I myself were arguing in front of the Supreme Court, I would urge them to depart from precedent on the basis that their interpretation of “commerce” being tantamount to “economic” is over-broad and unfounded.

So, as you can see, there are legitimate legal issues in question. It isn’t just a prolonged policy struggle between political parties. And while there are many more issues in play (e.g., the taxing and spending power, the 10th Amendment, etc.), the extent of the Commerce Clause will be the focal point of the lawsuit. Stay tuned till 2012 (in all likelihood).


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