Litigation Politics

Even as Congress struggled to hash out its health care reform bill, the last step before President Obama signs it into law, opponents rolled out yet another plan designed to kill the reform. Their weapon is to challenge through the courts the legality of the proposed federal mandate requiring individuals and employers to buy health insurance and states to set up health insurance exchanges. That mandate, opponents allege, violates personal liberty and states’ rights, and it cedes to Congress powers not granted in the Constitution.

Lawyers and scholars on both sides agree that Congress has the authority to tax, spend, regulate interstate commerce and promote the general welfare. But they differ on their interpretations of these powers and how they work.

Regarding the health care bill, opponents argue that while Congress can spend federal money, it cannot require individuals to spend their personal money for a specific purpose, like health insurance. Nor, they claim, can Congress force the states to spend state money on insurance exchanges or other particulars without violating states’ rights. Senator Orrin G. Hatch co-authored an op-ed article in The Wall Street Journal (1/2) that cited as legal precedents for such views two U.S. Supreme Court cases. The arguments and strategies have been worked out by conservative organizations like the Goldwater Institute in Phoenix and the Heritage Foundation in Washington, D.C.

Other legal scholars disagree. They find the federal mandate consistent with existing Congressional powers laid out in the Constitution, like the power to tax and to promote the general welfare. In a posting about the Senate health care bill on his blog on Jan. 2, the Yale Law School professor Jack M. Balkin explains that Congress would levy “a common penalty tax” on taxpayers who failed to buy insurance, analogous to “a tax on polluters who fail to purchase and install anti-pollution equipment.” The tax could also be considered “an excise tax on an event—a failure to pay premiums in a given month” and as such a failure to comply with the law. He thinks the federal mandate, under “Congress’s powers to tax and spend for the general welfare,” is one that “need not be apportioned by state.”

Prof. Mark A. Hall of Wake Forest University School of Law and Medicine has explored these questions in his essay “The Constitutionality of Mandates to Purchase Health Insurance” (on Georgetown Law School’s O’Neill Institute Web site). He finds a third source of authority for the mandate: the Constitution’s commerce clause. According to Hall, Congress can condition federal funding on “state compliance with federal initiatives” and it can also allow states to opt out of direct compliance as long as they “implement similar regulation that meets federal requirements.”

The current march toward litigation by opponents of the health care bill appears well orchestrated and has moved to the level of action by the states. Led by the attorney general of Florida, a Republican who is running for governor this year, more than two dozen states are seeking to amend their state constitutions to allow them to opt out of the federal health care mandate on the ground that it constitutes an infringement of liberty. Furthermore, they are not, as Hall suggests, planning to meet federal requirements of their own accord. Rather, they are registering their unwillingness to comply with the law.

Although attacking the constitutionality of the federal mandate is a last-ditch political tactic by opponents who have not been able to stop the health care reforms in Congress, lawmakers cannot afford to dismiss the strategy while the courts decide. They must work now to ensure that the opposition does not delay, hobble or unravel the reform. The committees writing the final bill should spell out the wide constitutional basis on which they draw their Congressional authority generally, and explicitly for the mandate. The House bill already invokes Congress’s power to tax. But that basis should be broadened.

During the New Deal era, Republicans played a similar hand, contesting in the courts parts of Franklin D. Roosevelt’s domestic program—with notable success. The Supreme Court invalidated two laws based on the commerce clause: the Agricultural Adjustment Act and a major portion of the National Recovery Act. On the latter occasion, Justice Charles Evans Hughes wisely said, “Extraordinary conditions may call for extraordinary remedies,” but they “do not create or enlarge constitutional power.” The truth is, today’s recession does call for extraordinary remedies. But no one wants health care at the expense of the Constitution. That puts the onus not only on members of Congress to construct legal remedies within their Constitutional powers, but also on the American people, who stand to benefit by health care reform, to support reasonable financing mechanisms to provide it.

This article appears in February 1 2010.