Precedent suggests court will uphold mandate in health care legislation

By Tom Stacy

Colorado citizens are entitled to ask whether the lawsuit Attorney General John Suthers has joined serves valuable purposes. The suit maintains it violates the rights of states under the Constitution for Congress to require individuals to purchase health insurance.  Whatever the abstract merit of this position, its premises have been clearly and recently repudiated by a majority of the justices who currently sit on the Supreme Court. Unless the court departs from the rule of law, the lawsuit has no reasonable chance of success.
It is true that the Constitution envisions limits on Congress’ power to regulate, relative to the states. But Article I gives Congress the far broader power to tax to promote “the general welfare.” Under the new health reform law, financially able adults do not go to jail for refusing to purchase health insurance. They must pay a federal tax.

Under existing precedent, it is a long shot to claim that this is a kind of tax the Constitution does not permit. But let’s just assume that, against all odds, the court holds otherwise.
Even as pure regulation, the individual mandate fits easily inside the current court’s understanding of Congress’ authority to regulate interstate commerce.

Suthers argues the health care bill is “the first time in history Congress has used its interstate commerce power to regulate people who choose not to engage in commercial activity. But that’s not true.

Just five years ago, in Gonzales v. Raich, the court held that Congress’ may regulate persons who do not engage in commerce when those persons threaten to undercut a larger scheme regulating commercial activity.

Raich sustained a federal law criminalizing noncommercial cultivation of marijuana for personal medicinal use. Such a law, the court reasoned, was a sensible part of a broader scheme regulating the commercial sale of illegal drugs.  This 6 – 3 decision was joined not just by the court’s “liberals” but also by Justice Scalia, who is one of the most conservative justices, and by Justice Kennedy, who is frequently a swing vote on the court.

The individual mandate is plainly part of a larger scheme regulating economic activity, namely the purchase of health insurance and medical services. Congress has good grounds for believing that this scheme is undermined by solvent adults who refuse to purchase health insurance.

Everyone knows that the uninsured receive medical treatment. Indeed, almost all hospitals are legally required to treat patients in an emergency condition regardless of ability to pay.

The issue is not whether the uninsured will receive treatment but, rather, who will pay for it. Congress could reasonably conclude that, if financially capable adults refuse to purchase insurance, everyone else will pay for expensive treatment they receive. Such freeloading, in turn, increases the cost of health insurance and frustrates Congress’ purpose of making health insurance affordable.

The attorney generals implicitly suggest this case is different because the health reform law forces individuals to engage in commerce. However, in cases every sitting justice regards as rightly decided, the court has upheld a federal law forcing hotels, motels and restaurants to engage in commerce with African American customers, even when they do not wish to do so.

Nor is it true that it would be unprecedented for the court to hold that Congress may require persons to purchase goods or services.

In 1942, the Supreme Court sustained a federal law restricting the wheat a farmer may grow for himself and his livestock. By design, the law forced many farmers to fulfill their needs by buying wheat in the market. The court treated this forcing as a reason to sustain the law, not invalidate it. The forced purchases increased demand and gave Congress reason to believe that wheat’s market price would increase. In the 2005 marijuana case, the justices relied heavily on the wheat case.

The attorneys general write as though Congress is regulating persons for doing nothing, for merely being residents of the United States. Let’s get real. The law is aimed at activity, at Mr. Too-Smart-To-Buy-Health-Insurance’s seeking and receiving medical treatment when he suffers serious injury and shifting the costs to everyone else. It is strange to view the Constitution as permitting federal authorities to seize his assets after-the-fact but as prohibiting the much more effective means of requiring that he contributed all along to a health insurance pool like everyone else.

Most constitutional scholars, including many conservatives, believe that existing law clearly forecloses the conclusion that an individual mandate is “an unconstitutional expansion of federal power.”  One can still value the lawsuit as a contribution to the debate over the Constitution’s meaning.  In a time of tight state budgets, one can also question whether a lawsuit is the best way to conduct a seminar in how the court should, but will not, interpret the Constitution.

Tom Stacy teaches constitutional law, health law and criminal law at the University of Kansas Law School. He was a law clerk for the U.S. Court of Appeals and U.S. District Court and in private practice in Washington, D.C., before joining the law school in 1986.


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