The unconstitutionality of the insurance mandate

LA writes to A. Zarkov:

I haven’t yet read this article from CNS News, “White House Says No ‘Veracity’ to Argument That Forcing Individuals to Buy Health Insurance Is Unconstitutional.” Would you like to take a shot at it?

A. Zarkov writes:

From the article:

But [press secretary Robert Gibbs] said those who make this kind of argument have no federal court cathanksses to back them up.

“I won’t be confused as a constitutional scholar, but I don’t believe there’s a lot of—I don’t believe there’s a lot of case law that would demonstrate the veracity of what they’re commentating on,” said Gibbs.

It seems to me that Gibbs has reversed the argument. We have a federal government of enumerated powers, and both the Congress and the administration suffer the burden to show where the Constitution grants the power in question to Congress. He needs to cite the appropriate case law, not the questioner. In short Gibbs has no answer. The Democrats are looking worse and worse on this issue. If they had a good answer they would have come up with it by now

Pelosi is in the same bind, so she simply refused the answer the question that she can’t answer by taunting the questioner. Not a good response on her part because she looks arrogant as well as ignorant. Of course she can do virtually anything and still get elected in San Francisco, short of opposing gay marriage. This is a problem with the Democratic leadership. They have super safe seats, and thus feel completely immune from any political pressure.

Now let me throw in some bonus material. Why discuss these ignorant hacks, when real professors of constitutional law have weighed in on the issue. If they can’t come up with a compelling argument, then we know the mandate is weak.

Professor of constitutional law at UC Irvine Erwin Chemerinsky tries to do better here and here, but in my opinion, he does not succeed. He basically says that Congress has the power under the Interstate Commerce Clause (ICC), and writes: “The Supreme Court has held that this includes authority to regulate activities that have a substantial effect on interstate commerce.” True, but note the word “activities.” The health care mandate does not require a citizen to engage in some activity—merely living in the country is enough to trigger the requirement that one must buy health insurance or face a criminal penalty. In short anything is covered under Chemerinsky’s interpretation of the ICC. Such a viewpoint in effect renders the ICC meaningless. Why would it have been written into the Constitution in the first place if Congress can regulate anything including mere existence? Also notice that Chemerinsky avoids telling us about the Supreme Court decision in U.S. v. Lopez, which did set a limit on the ICC.

To be fair, Chemerinsky does make an attempt to deal with the above argument when he writes,

Ken Klukowski, writing in POLITICO, argued that “people who declined to purchase government-mandated insurance would not be engaging in commercial activity, so there’s no interstate commerce.” Klukowski’s argument is flawed because the Supreme Court never has said that the commerce power is limited to regulating those who are engaged in commercial activity.

Well sure, but one must engage in an activity that is connected to, or somehow affects interstate commerce. Again mere existence is not an activity. He goes (still avoiding Lopez) on and writes,

The court has said that Congress can use its commerce power to forbid hotels and restaurants from discriminating based on race, even though their conduct was refusing to engage in commercial activity. Likewise, the court has said that Congress can regulate the growing of marijuana for personal medicinal use, even if the person being punished never engaged in any commercial activity.

Here he does a little better because at least he deals with a refusal to do something. But the refusal is a conduct intimately connected to an ongoing commercial activity, where the actor refuses a transaction. Nice try, but I think that kind of conduct falls far short of not buying something that directly affects only the person not buying the product.

I wonder if it has occurred to Chemerinsky and the other mandate supporters that under their interpretation of the ICC, Congress has the authority to regulate abortion and acts of sodomy, in effect negating Roe v. Wade and Lawrence v. Texas? Of course they would say that privacy trumps the CC (why?). But medical insurance also invades privacy. I wonder if they are prepared to deal with this? If they want to drastically expand federal power they had better realize that their own sacred cows could get sacrificed.

The press refers to Chemerinsky as a “renowned” constitutional scholar. If this is their best shot at justifying the constitutionality of the mandate, then I think this legislation is on weak ground. Let’s remember that the Supreme Court declared the 1933 National Industrial Recovery Act unconstitutional during one of the worst parts of the Great Depression. Unless Obama can alter the balance of the current Supreme Court, I’m doubtful the mandate can survive a challenge.

LA replies:

Thanks very much for this.

Question: is it the case that the justification for the 1964 Civil Rights Act’s prohibition on racial discrimination in public accommodations is the interstate commerce clause? It probably is, but I just wanted to be sure. Assuming that it is, we are already so far outside any remotely reasonable reading of the Constitution that we’re already in a situation where anything is possible.

However, as I’ve said in an earlier discussion on this topic, as specious as the use of the Interstate Commerce Clause is in the case of discrimination in public accommodations, there is arguably a hint of a color of constitutionality in its use in that instance, in that, as you point out, the situation involves either commercial activity or a rejection of commercial activity. That is, you are in business, running a restaurant, engaged in commerce, and people want to eat at your restaurant and engage in a commercial act with you, and you reject them. It is of course utterly illegitimate to call this interstate commerce, but there is a sort of argument by which one can say that it is commerce, and, as commerce, that it has some minuscule effect on interstate commerce, and therefore Congress can regulate it. It’s a sickening outrage, but it’s not totally devoid of an appearance of reason.

But in the case of an individual declining to purchase medical insurance, the individual is simply doing nothing. There is not even a specious and fraudulent reasoning process—there is no reasoning process at all—by which the act of doing nothing can be construed as engaging in commerce. If doing nothing can be construed as a commercial act that the federal government can regulate, prohibit, and punish, if doing nothing is a criminal act, then we’re under an absolute dictatorship. As far gone as America is, there are limits. And I don’t see how the Supreme Court could uphold this bill. If it did uphold it, any pretense that we are living under a constitutional government would be gone, and we would have entered a revolutionary situation.

When I say revolutionary, I don’t just mean that the left would have initiated a revolution, I mean that conservatives could not help but recognize that the constitution had been overthrown and that conservatism no longer means preserving the Constitution, but overthrowing the present revolutionary regime in order to restore the Constitution.

If the Constitution is killed, and everyone recognizes that it has been killed, then conservatism, in the sense of upholding the existing order of society, is also killed. At that point conservatives will either give in to the revolution, or become counterrevolutionaries.

A. Zarkov quotes and replies to LA:

Question: is it the case that the justification for the 1964 Civil Rights Act’s prohibition on racial discrimination in public accommodations is the interstate commerce clause? It probably is, but I just wanted to be sure. Assuming that it is, we are already so far outside any remotely reasonable reading of the Constitution that we’re already in a situation where anything is possible.

Yes. The power of Congress to enact the Civil Rights Act rests on the Interstate Commerce Clause.

However, as I’ve said in an earlier discussion on this topic, as specious as the use of the Interstate Commerce Clause is in the case of discrimination in public accommodations, there is arguably a hint of a color of constitutionality in its use in that instance, in that, as you point out, the situation involves either commercial activity or a rejection of commercial activity. That is, you are in business, running a restaurant, engaged in commerce, and people want to eat at your restaurant and engage in a commercial act with you, and you reject them.

Yes, when the owner of a business refuses a transaction during the course of business, he’s engaging in a type of conduct, and that conduct gets regulated by Congress under the CC. Of course the owner can close up the business to avoid complying with the Civil Rights Act. As you might recall, that’s exactly what Lester Maddox did in Georgia when he closed his Pickrick Cafeteria to avoid serving blacks. Congress lacks the Constitutional authority to force him to remain in business because that would make him a kind of slave or at least a serf.

But in the case of an individual declining to purchase medical insurance, the individual is simply doing nothing. There is not even a specious and fraudulent reasoning process—there is no reasoning process at all—by which the act of doing nothing can be construed as engaging in commerce. If doing nothing can be construed as a commercial act that the federal government can regulate, prohibit, and punish, if doing nothing is a criminal act, then we’re under an absolute dictatorship. As far gone as America is, there are limits. And I don’t see how the Supreme Court could uphold this bill. If it did uphold it, any pretense that we are living under a constitutional government would be gone, and we would have entered a revolutionary situation.

Yes, that is correct. Unless someone can come up with some very clever and devious piece of legal reasoning. For example the Constitution in Article I, Section 9, seems to authorize a capitation. A capitation is a tax levied on everyone for a fixed amount. Compare and contrast to the income tax which varies across individuals. I suppose Congress could do a capitation, and then do a rebate through the income tax. This might work, but notice it does not depend on the CC. This is getting into a very technical area of tax law, and I can’t say more without doing some research.

When I say revolutionary, I don’t just mean that the left would have initiated a revolution, I mean that conservatives could not help but recognize that the constitution had been overthrown and that conservatism no longer means preserving the Constitution, but overthrowing the present revolutionary regime in order to restore the Constitution.

Yes, if the Supreme Court upheld the mandate under the CC, then in my opinion we no longer have a Constitution because the whole idea of enumerated powers is thrown away. We would then have a Congress with plenary power, something the founders of this republic sought to avoid.

If the Constitution is killed, and everyone recognizes that it has been killed, then conservatism, in the sense of upholding the existing order of society, is also killed. At that point conservatives will either give in to the revolution, or become counterrevolutionaries.

Yes, strictly speaking conservatives would then need to become reactionaries seeking to restore the former republic of limited powers they lost.

In closing let me warn you that my analysis might turn out to be worth what you paid for it. I am relying on what I would call ordinary and common history and civics. The world of constitutional reasoning is a weird one. Once one accepts the idea of a “living Constitution,” anything is possible. I think Originalism is the only proper way to reason about the Constitution, but that’s what they teach students in law school. For example the Contracts Clause of the US Constitution prohibits any state government from impairing a private contract. But the State of Tennessee did just that in 1933 when it passed a law that put a temporary halt on mortgage foreclosures. But the Supreme Court upheld that law in Home Building & Loan Association v. Blaisdell. The court said Tennessee could do that under its “police powers.” To which I say: huh! Note that Congress can impair a contract—that’s what bankruptcy is all about.

You can thank the New Deal for laying the foundations of the mess we are in now.

Lydia McGrew writes:

I appreciate your discussion with A. Zarkov about the insurance mandate, because it avoids two attitudinal errors that are easy to fall into. The first error is sounding naive by being shocked, shocked, to find that Congress is exceeding its constitutional powers. This just opens one to all the examples of all the ways that Congress is already exceeding its enumerated powers, which the liberals are using to make it sound like the very notion of enumerated powers is quaint and irrelevant and like anyone who thinks otherwise is a fool. The second error is being so bitter about the fact that our federal government has done many unconstitutional things and has successfully built those laws into the structure of our country that one shrugs off the unconstitutionality of the insurance mandate—“Who cares? It’s too late long ago. Why bother talking about it?” The discussion makes it clear both how the federal government has already exceeded its constitutional powers and also how this is a new departure which is therefore worth discussing and fighting.

LA replies:

I thank Lydia very much for this. The distinctions she has made are essential for conservatives to understand, if they are to avoid naive reaction against liberalism on one side, in which one shows no awareness of how advanced liberalism already is, and cynical surrender to liberalism on the other side, in which one says that liberalism has already won, so there’s nothing to do, we’re doomed.

Edward writes:

The Commerce clause is not about commerce. It is about “Interstate Commerce”. How does not buying insurance affect Interstate commerce especially since the insurance industry is regulated state by state and licensed only to do business in a particular state. Nation wide insurance companies are required to be licensed in each individual state they do business in and are regulated by the state. The only thing that can make it constitutional is the idea of a living document and a swing justice who believes in that idea. [LA replies: in response to Edward’s comment, I’ve changed the references in the above discussion from “Commerce Clause” to “Interstate Commerce Clause”, and “CC” to “ICC.”]

LA replies:

You’re speaking the language of a normal, rational human being, and that’s not relevant here. Of course a transaction between two parties in the same state is not interstate commerce. But over time, the Supreme Court, looking for ways to help expand federal power, expanded the meaning of “interstate commerce” so that virtually any commerce became interstate commerce. For example, they would say that if you were selling some good or service in your town, that ultimately affected the market price of that good or service everywhere, and thus it was affecting “interstate commerce,” and thus Congress could regulate your local transaction.

And that’s what was done with the Civil Rights Act of 1964. Whenever Congress passes a law, it’s supposed to state in the law the constitutional basis of the powers that are being exercised by that law. So in the ‘64 Civil Rights Act it might have said something like this (I’m just making this up, to give a rough idea of what I’m talking about): that since decisions by an employer not to hire Negroes affect the price of labor everywhere and thus affect interstate commerce, and since decisions by a restaurant or other public accommodation to exclude Negroes affect interstate commerce, Congress under the Interstate Commerce Clause of the Constitution has power to regulate racial discrimination in employment and public accommodations.

October 31

Tim S. writes:

In the discussion of the potential constitutionality of a Federal requirement to purchase health insurance on which there are many good comments, I wonder if we are overlooking something.

The supporters of this option may realize full well that the requirement part of the statute is unconstitutional, but so what? Suppose all the rest of the bill remains in effect—there is a public option and there is a program for subsidizing low-income participation in health care? Isn’t that the real goal of the left? I think the requirement that everyone have health care may be a smoke screen, an argument that is supposed to appeal to the right who are tired of people without insurance showing up in emergency rooms for free treatment.

I don’t know whether only part of a statute can be challenged and brought before the Supreme Court while the rest stands, but some of your readers will.

LA replies:

I don’t know about that either. But if the mandate fails, the bill would become unworkable, since the whole purpose of the bill is to make sure that virtually all people in this country have medical insurance. If millions of people, particularly younger and healthy people, decline to buy insurance, premiums on everyone else would have to increase, making the whole structure much harder to sustain.

But, bottom line, you’re probably right. The left ultimately doesn’t care what they get through, so long as it involves federal control over healthcare. Once that beachhead is established, all they have to do is keep expanding it. So, with or without the mandate, the bill must be stopped at all costs.

October 31

Cindi S. writes:

“For example the Constitution in Article I, Section 9, seems to authorize a capitation. A capitation is a tax levied on everyone for a fixed amount.”

For the purposes of Congress’ carrying out of its enumerated duties only, no?

Where is it enumerated in the Constitutional list of Congress’ duties and authorities the power to involve itself in medicine? At all. In any way.

I am. so sick. of these people.

LA replies:

But again the unhappy point must be made that for a long time Congress has been doing all kinds of things that are not enumerated. Where does Congress derive the authority to create National Parks, for example? Or to subsidize education? Or to subsidize the arts? Or to subsidize all kinds of building projects? Or to subsidize local police forces? Or to provide for people’s old age expenses? Or to pay medical costs for welfare recipients? Or to fund scientific research?

So, as I said before, the Constitution is already deeply compromised, and that is a major factor in empowering the left to go much further. At the same time, each of those earlier federal actions offered some reasoned appearance of constitutional justification. There is none in the present instance. If this bill is becomes law we pass from a gray area of unconstitutionality to total unconstitutionality. It would be analogous to what happened to the Episcopal Church USA with the ordination of an active homosexual as a bishop in 2003. Up to that point, the EPUSA was in a gray area, deeply compromised, but still a Christian church. With the ordination of Robinson the EPUSA passed a bright red line, a definitional line, and it became impossible to think of it as a Christian body.

Ferg writes:

We either have a constitution that defines the form, content, and powers of our federal government, or we have a federal government which is whatever the current power holders say it is, and has whatever powers they say it does. This is why the question of Obama’s birth is so important. Do we have a constitution or do we not? If not, then We the People are free to reform that government any way we choose. A government not based on a firm constitution does not govern with the consent of the governed. It governs with what the power it wields will let it get away with. It looks to me like Congress and the President currently have the power to get away with this. I do not think the courts will stop them. I think massive civil disobediance is the only answer. Or at least the first answer.

Posted by Lawrence Auster at October 30, 2009 12:13 PM | Send