United States — April 28, 2011 9:00 pm

The Health Care Constitutional Controversy

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With legal challenges from 26 states en route to the Supreme Court, the constitutionality of the Patient Protection and Affordable Care Act (PPACA) has been called into question. The case is sure to be historic. “This will be the most important Commerce Clause case since cases upholding the Civil Rights Act of 1964,” Richard H. Fallon of Harvard Law School said.  Even if the constitutionality of the law is upheld, the fate of health care reform in the United States will not be decided until at least 2012.  Just as President Obama’s signature piece of legislation has dominated discussion of his first term, health care reform will be among the biggest issues in the 2012 elections.  In the meantime, the legal challenges bring out the historic nature of PPACA and raise larger questions about the powers of the federal government.

Virginia Attorney General Ken Cuccinelli argues that the health care act is unconstitutional.

Implications of the Individual Mandate

The major lines of argumentation on this issue center on the Interstate Commerce Clause, which grants Congress the power to regulate commerce between states.  The Department of Justice argues, on behalf of the federal government, that PPACA is constitutional because health care is a complex interstate industry and the Commerce Clause, together with the Necessary and Proper Clause, gives Congress the ability to regulate it.  Supporters of PPACA point to broad readings of the Commerce Clause in cases such as Gonzales v. Raich, where the Court held that Congress can criminalize the growth and use of homegrown marijuana even in areas where medical marijuana is legal, and the cases that upheld the Civil Rights Act of 1964, which compelled businesses to serve people regardless of race.

The 26 states that are suing the government over PPACA assert that Congress is overstepping the powers of the Commerce Clause, and point to the individual mandate as a characteristic that distinguishes this case from previous ones.  The States argue that the act aims to regulate inactivity as opposed to activity.

Virginia Attorney General Ken Cuccinelli sees the individual mandate as plainly burdensome to individual liberty.  “This is an unprecedented exercise of congressional power,” Cuccinelli told the HPR.  “A compulsion to buy a product under the Commerce Clause has never happened before.  The offending circumstance is not doing something: just sitting on the couch!”

However, Fallon calls the states’ claim that the act invades the reserved powers of the states “legally frivolous.”  Cuccinelli likewise rejects the government’s fallback argument that the act is supported by Congress’s powers of taxation, as the Court has held that there is a justiciable difference between a tax—which is broadly applied and designed to generate revenue—and a regulatory penalty like the one the act imposes on those who fail to purchase health insurance.  Ilya Shapiro of the Cato Institute characterizes the government’s taxation argument as “an end run around the Constitution.”

Shapiro, who has filed amicus curie briefs in support of the states, says that the conventional view that the challenges are “political sour grapes” has shifted, and the states’ argumentation has come to be perceived as legitimate.

While the argument for the unique nature of the individual mandate and its regulation of inactivity is compelling, it is not explicitly prohibited that the government regulate individual activity in this way.  Shapiro is right when he says that this provokes a natural worry about a lack of limits on federal power.  The idea that Congress’s regulatory powers enable it to force individuals to take a certain economic action is offensive to basic conceptions of liberty.  Short of making an argument for a right not to be forced to buy something through appeals to natural law and the Ninth Amendment, though, the Commerce Clause is enough to uphold the constitutionality of PPACA.

Handicapping the Court

Speculation on the potential votes of the various justices runs the gamut.  “I could imagine it being upheld by as large a margin of eight to one,” said Fallon.  “But it could be as close as five to four to uphold, or it could go down five to four.”  The eventual decision is difficult to predict because of the unique nature of the case, and because the backgrounds of the individual Justices are sometimes misleading.  Justice Kennedy, as usual, is the most difficult to predict.  Shapiro puts the chances of the act at about even odds, with Kennedy casting the deciding vote.

If the Court upholds the law by a 5-4 margin, the stench from the legal battle could linger into November.  A 5-4 decision striking down the law would be damaging, although probably not debilitating, to Obama’s reelection campaign.

Political Fallout and 2012

Henry J. Aaron of the Brookings Institution says that the uncertainty created by the legal challenges might retard implementation of the act, which is proceeding rapidly in some states and slowly in others.

This uncertainty and the obvious economic implications of PPACA are some of the major reasons that Cuccinelli and others want to see the challenges resolved as soon as possible.

There has also been indecision on the part of the executive and state governments as to how to proceed given the contradictory rulings of the lower courts.  The Justice Department has filed a brief asking Judge Vinson to clarify how they should comply with his ruling, and some state governors have implied that they have no intention of rushing to implement a law that may be void in a year.

Cuccinelli is emphasizing the facts that PPACA was cobbled together on a strictly partisan vote and never went through committee in amendable form.  Aaron adds that, “there are a lot of fingerprints on the knife,” when it comes to the dilution and amendment of PPACA.  The Republicans consistently deride the enormity of PPACA, and are sure to harp on the sausage making of the Democrats in 2012.

The Democrats will have to play defense in 2012 regardless of how the legal challenges play out, but a hotly contested ruling may make it difficult to avoid “refighting the battles of the last two years,” as the President often states.  The Republicans, on the other hand, must battle the conception that they are the party of no, and must convince independent voters that they have an alternative to PPACA.  Mitt Romney could be a seductive candidate for the GOP for the very reason some say he will not get the nomination: he implemented health care reform on the state level as Governor of Massachusetts.

While the Supreme Court can and will resolve the legality of the act by likely upholding its constitutionality under a broad reading of the Commerce Clause, the issue of health care reform will play a large role in the 2012 elections, and will not be decided until the last votes are counted on election night.  Republicans will keep pressure on the Democrats— who will be playing defense in a large number of districts—both in the courts and in Congress.  Whether the GOP can convince the nation that they possess viable alternatives to PPACA may very well determine if they retake the Senate, and the White House.

Update: The Supreme Court recently declined to take the case ahead of the appellate courts, guaranteeing that the issue will not be definitively ruled on for several months.

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