An analysis of the constitutional challenges to the health care reform bill

A law school grad and writing colleague, Ryan Witt, just wrote a useful article that has topical importance for students:


Following the signing ceremony today health care reform is now the law of the land.  As Vice President Joe Biden put it this is a "big f**cking deal" as the legislation represents the largest overhaul of the health care system in over 50 years.  However as soon as the ink was dry from the President's signature some 13 states attorneys general filed lawsuits to have the legislation struck down.  All of Democrats efforts will be for naught if the federal court system nullifies the law because it is unconstitutional.


So is the bill unconstitutional?  The most honest answer is no knows for sure.  A law like this has never been passed and therefore no clear precedent applies. Georgetown law professor Randy E. Barnett seems to give credence to the constitutional challenges to reform but others such as Professor Timothy Jost at Washington and Lee University suggest the legislation is clearly constitutional.  So some very knowledgeable people have contrary opinions.

Here is a breakdown of what we do know about the Constitution as it relates to the legislation.

The Individual Mandate and the Powers of Federal Government

First the legislation does present a new case in that it proposes to force individuals to buy insurance from a private companies.  If individuals do not purchase insurance they will be fined approximately $700 or 2.5% of their income whichever is greater.  There are some exceptions granted based on religious objections and financial hardships.

Now there are some similar laws but nothing that goes quite this far.  For example states require individuals to have insurance in order to drive a car but if individuals do not want to obey that law they simply can chose not to drive.  Under health care reform everyone would need to purchase insurance.  People are also automatically taxed for Social Security and Medicare but these taxes are on income and not technically a fine for not engaging in some kind of behavior. 

However just because the federal government has never done something this does not mean that it is unconstitutional.  The Department of Justice is likely to point to many parts of the Constitution in defending the legislation.  Article 1, Section 8 proscribes the powers given to Congress.  The relevant powers in this case could be:



The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

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 government's power to tax is generally interpreted very broadly by the courts so if the Obama administration was able to effectively argue the mandate was in fact a "duty" or "tax" the courts would probably approve the mandate.  Of course the state attorneys generals will argue the legislation does not fall under this power since a "fine" is different in nature than a tax.

The Department of Justice could also argue that the legislation is merely an attempt to "regulate Commerce."  The commerce power is certainly not unlimited but generally Congress can regulate anything which has a substantial relation to interstate commerce.  The Obama administration would have a strong argument here since health care makes up over one-sixth of the economic activity of the entire nation.

A Challenge Based on the Tenth Amendment

Idaho has already passed a law which states their citizens are not bound by the health care laws.  While this is likely a nice political tactic in general states can not simply exempt their citizens from federal law.  For example if Missouri passed a law exempting their citizens from the federal income tax the IRS will still be able to demand my payment next year.  Under the Supremacy Clause (Article VI, Clause 2 of the U.S. Constitution) federal law generally trumps state law.

A reader may have noticed how I emphasized the "generally" part of my last analysis.  There are exceptions to the Supremacy Clause rule.  If a power is considered "reserved" for the States under the Tenth Amendment then theoretically a federal law could be nullified if it conflicted with state law.

The problem for the attorneys general is that once again a regulation of health care seems perfectly within the federal government power either to tax or to regulate interstate commerce.  Given the vast nature of Medicare and Medicaid it will be hard for the states to argue that the regulation of health care is a power reserved solely for them.

A Challenge Based on the Fourteenth Amendment

The Supreme Court has interpreted the 14th Amendment as granting substantive due process rights to American citizens.  Basically what this means is that citizens have certain rights which are not explicitly enumerated in the Bill of Rights.  For example the Supreme Court determined a woman has a limited right to have an abortion based upon a right of "privacy" under the Fourteenth Amendment even though privacy is never explicitly mentioned as a right in the U.S. Constitution.

In order to challenge the health care bill a U.S. citizen would have to allege the bill violates a fundamental right they have as part of the "liberty" interest under the Fourteenth Amendment.  Generally something is determined to be a "fundamental right" if it is "deeply rooted in American history and traditions."  A claimant would have to identify a right such as "the right to make one's own health care decisions" or "the right to abstain from purchasing insurance."  They would then have to show that this right has been deeply rooted in American history and traditions.  The Department of Justice would of course argue to the contrary.

Even if the court agreed that a "fundamental right" was at issue the government could still argue the legislation is constitutional.  Even legislation affecting fundamental rights is constitutional if it is necessary to advance a compelling state interest.  The government would argue the individual mandate is necessary to meet the compelling state interest of providing affordable health care for all or something to that effect.  It would then be up to the court to determine which side was right.

The hardest step in this process would be convincing a court that a "fundamental right" was at stake.  Generally the courts are reluctant to create new fundamental rights since it opens the door to challenges of all sorts of other laws.  For example if a court determined an individual has a "fundamental right" not to purchase insurance it could lead to a challenge of automobile insurance laws among other things.

Conclusion:



Anyone who says they know for certain how the court system will rule on an issue this complicated does not know of what they speak.  Having said that the lawsuits that seek to have health care reform overturned are facing some long odds.  The Department of Justice has a large staff of experienced and qualified lawyers who have many credible legal arguments to make for the bill.  I have just scratched the surface of the legal arguments they are sure to come up with in defending the legislation.  A federal court is unlikely to declare such a bill unconstitutional without a really good basis for doing so.  Faced with such obstacles it is hard to imagine opponents of reform succeeding in getting rid of the law through the court system.