Why “Obamacare” is Not Unconstitutional

[bob000555]

So far, The Patient Protection and Affordable Health Care Act has been found constitutional by three federal District Court judges and one federal Circuit Court (aka Appeals Court) panel. It has been found unconstitutional by two federal District Court judges and appeals are pending in these cases. If any Circuit Court finds the Act unconstitutional, it would create a circuit split and virtually guarantee that the case would go to the Supreme Court.

 

Both Courts that found the Act unconstitutional, focused on the “individual mandate” portion of the Act, which requires individuals to purchase health insurance or pay a substantial penalty. Thus far, all analysis of the individual mandate has been under the Commerce Clause of the Constitution, with the Government arguing that the individual mandate is authorized by the Commerce Clause and the plaintiffs arguing that the mandate is unregimented, not within the gambit of the Commerce Clause and unconstitutional.

 

I see a rather large problem with this analysis. Namely, it violates a principle in the Supreme Court’s jurisprudence called “constitutional avoidance.” The Supreme Court explained the principle succinctly in its ruling in Clark v. Martinez:

 

When deciding which of two plausible statutory constructions to adopt, a court must consider the natural consequences of its choice. If one of them would raise a multitude of constitutional problems, the other should prevail.

 

What this essentially means, is that when asked to pass judgment on the constitutionality of a law, a Court has a multi-step process. First, they must see if they can construe the law in a way that avoids sticky constitutional problems. If they can, than that construction stands, and they do not pass judgment on the law’s constitutionality. If, and only if, they cannot successfully complete step one, they go on to test the constitutionality of the law.

 

The two Judges who found the Act unconstitutional failed to undertake step one of the analysis in their judgments. (see: Florida et al v. United States Department of Health and Human Services and Commonwealth of Virginia v. Sebelius). This is largely because the United States failed to raise the issue in defending the Act; the Administration wants the Act to be found outright constitutional. But this really should not mater; constitutional avoidance is binding case law on the canon of statutory construction, and therefore, Judges are required to consider it sua sponte even if neither party brings it up.

 

The question therefore becomes “Is there an alternative construction of the individual mandate that avoids the constitutional muck of the Commerce-Clause analysis?” Because the government wants the Act declared outright constitutional, and the plaintiffs want it declared outright unconstitutional, no significant analysis has been given to this question, but I should say that there is an alternative.

 

My analysis begins with Congress’ “Power To lay and collect Taxes” found in Article I, Section 8, Clause 1 of the Constitution and the Sixteenth Amendment’s clarification that taxes may be levied “without apportionment among the several States, and without regard to any census or enumeration.” This means that Congress has the authority to tax individuals.

 

The next element of my analysis comes from the Necessary and Proper clause of the Constitution which provides that “The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

 

The power to exempt certain individuals from certain taxes would certainly be a “Necessary and Proper” extension of the “Power to lay and collect Taxes.” Therefore, it is in keeping with existing jurisprudence to say that congress has the power to legislate that there exists a tax, but that those who buy health insurance are exempted from it. Because this is substantially the same as the individual mandate, and because it avoids the complex constitutional questions of other constructions of the individual mandate, the constitutional avoidance doctrine says that Courts can, and indeed must, accept this interpretation of the individual mandate, and decline to find the Act unconstitutional.

Edited August 12, 2011 by bob000555

[iNow]

I think you're largely correct, and suggest (given the thought you put into this) that you might enjoy this series of short essays I've been reading on the subject. It's an online "symposium" to which they've been adding throughout August.

 

http://www.scotusblog.com/category/special-features/aca/

 

 

The only real "argument" the opposition has relies wholly on the concept of regulating "inactivity," and whether or not the government can do that. It's couched in libertarian ideology and not in history or constitutional language, and is an incredibly weak argument. Basically, everyone will need some level of healthcare at some point in their life (it's not like choosing not to buy a car), and this "inactivity" is truly actually anything but. It's really a conscious decision to self-insure, and that decision impacts costs across state lines.

 

What is silly is that if we'd simply done a single payer system there would be no challenge. If we had Medicare for all, then there'd be no problem. It's this jacked up "try to keep the private sector insurance companies involved" nonsense that throws it off, as the individual mandate is the only way financially to allow and sustain coverage for all, including those with preexisting conditions. I'd rather have single payer, but even if we stay with this rube-goldberg thing we have, I agree with you that it's constitutional (just sub-optimal).

Edited August 12, 2011 by iNow

[bob000555]

Just to point out, my post fairly accurately predicted the reasoning the Roberts used in the majority opinion (reasoning which almost no one else predicted). Either I'm a genius, or Roberts reads SFN (or perhaps both).

Edited June 28, 2012 by bob000555

[ecoli]

Just to point out, my post fairly accurately predicted the reasoning the Roberts used in the majority opinion (reasoning which almost no one else predicted). Either I'm a genius, or Roberts reads SFN (or perhaps both).

 

Kudos on getting this right.

 

I've been reading a bit about this (admittedly I haven't been following the case closely) and I don't quite understand how taxing individuals for not engaging in a specific kind of commerce (whether they think its in the public interest or not - though this is a separate issue) doesn't fall under the commerce clause. It seems that using taxes as penalties to get people to buy what congress wants sets a bad precedent (products that congressmen/women own stock in, for example) in addition to violating the "spirit" of why the bill was rejected under argument of the commerce clause.

 

I'm trying not to be too reactionary on this.

[bob000555]

Kudos on getting this right.

 

I've been reading a bit about this (admittedly I haven't been following the case closely) and I don't quite understand how taxing individuals for not engaging in a specific kind of commerce (whether they think its in the public interest or not - though this is a separate issue) doesn't fall under the commerce clause. It seems that using taxes as penalties to get people to buy what congress wants sets a bad precedent (products that congressmen/women own stock in, for example) in addition to violating the "spirit" of why the bill was rejected under argument of the commerce clause.

 

I'm trying not to be too reactionary on this.

 

I'm not sure what you mean when you say you don't get why it doesn't fall under the commerce clause. The commerce clause simply grants Congress the authority to regulate interstate commerce, the argument from the opponents of the law was that the commerce clause doesn't specifically allow Congress to regulate commerce that does not yet exist. Chief Justice Roberts agreed with them on this but said that it didn't matter because the power to lay and collect taxes was sufficient to allow congress to enact the legislation. (Strictly speaking, under the doctrines of judicial restraint and constitutional avoidance, the Court probably shouldn't have spoken on the dormant commerce issue because it wasn't strictly necessarily to resolve the question the law's constitutionality. Though maybe they chose to rule on it because it was one of the questions they granted a writ of certiorari on.) Congress only needs to have authority under one section of the Constitution for its enactment of a law to be upheld.

 

I do agree with you, though, that the precedent that Congress can create new taxes and make them contingent on basically what ever it wants has a pretty large potential for abuse.

Edited June 28, 2012 by bob000555

[ecoli]

Invoking interstate commerce on health care never made much sense to me anyway considering you can't buy health insurance from a provider based in a different state.

[bob000555]

Invoking interstate commerce on health care never made much sense to me anyway considering you can't buy health insurance from a provider based in a different state.

 

True. But, recently the Supreme Court's interpretation of the commerce clause has been broad enough that they ruled that it allowed the Feds to arrest someone growing and consuming their own marijuana, which wasn't commerce, much less interstate commerce.

see: Gonzales v. Raich

[Cap'n Refsmmat]

Roberts' decision was surprisingly readable. He knew the general public would want to scrutinize every word, so it starts with an introduction to the powers of Congress and the role of the Court before getting into detail. I think he's trying to preempt misinformed criticism from the public.

 

I haven't yet read any of the dissents.

 

http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf

[iNow]

The commerce clause did not factor into the decision whatsoever. The issue is not that "congress can tax you if you fail to buy insurance." The issue is merely that "congress can tax you." That's all this is. The reason for said tax is irrelevant. So, too, is how congress chooses to use the revenue from those taxes.

Edited June 29, 2012 by iNow

[Bill Angel]

I think we could be having this discussion again after the election. If republicans win control of the senate and keep control of the house, this controversial "tax" could very well be repealed. The republicans could attempt to do what the democrats did: use the budget reconciliation process to push through changes in the healthcare law while avoiding a democrat filibuster in the senate.

Edited June 29, 2012 by Bill Angel

[John Cuthber]

Just a thought from a member of the other 95% of the world's population.

You guys really thought that providing for the poor might be unconstitutional?

Weird!

[zapatos]

Just a thought from a member of the other 95% of the world's population.

I'm curious why you point out here (and in many threads) that you belong to "the other 95% of the world's population". Do you feel as if you are representative of the other 95%? Or that the way you look at a document like the Constitution varies by country? Are Americans generally viewed as unique, and the other 95% as a homogeneous group? I'm a bit unsure of the relevance of country of origin in this situation.

 

You guys really thought that providing for the poor might be unconstitutional?

Weird!

I don't think that many people (in the US) would have been surprised if the law had been struck down. But yours is a rather simplistic view of the situation. The law covered much more than "providing for the poor", and if it had been struck down it would have been based on whether or not the law followed the rules set in the Constitution. Speaking for the 5%, no one here believed that "providing for the poor" might be unconstitutional.

Edited June 29, 2012 by zapatos