As almost all of you know, this week will see three days of oral argument on the Constitutionality of provisions of the recently enacted federal law addressing health insurance and elements of health care.
Three days on the Constitutionality of a federal statute is unprecedented.
And if you listen to the oral arguments (the Supreme Court is expediting their release, allowing same-day listening pleasure for the geeks out here) or read the transcript, unprecedented is a word you’ll hear or read a lot.
It is a principle theme in the argument of those challenging the Constitutionality of the Act.
Here are the official issues presented in the case:
Day One: (1) Whether the Patient Protection and Affordable Care Act is beyond Congress’ powers under Article I because it includes a mandate that individuals must obtain health insurance or pay a monetary fine; and (2) Whether the Anti-Injunction Act, 26 U.S.C. §7421(a), bars suits by challengers to the Act.
Day Two: (1) Whether Congress may make federal Medicaid funding contingent upon States providing expanded health care in order to coerce States into accepting conditions that Congress would be otherwise unable to impose directly; and (2) Whether the individual mandate that requires Americans to purchase health insurance, if deemed unconstitutional, may be severed from the rest of
the Patient Protection and Affordable Care Act.
Day Three: Whether the entire Patient Protection and
Affordable Care Act must be invalidated because its mandate requiring individuals to obtain health insurance is non-severable from the remainder of the Act.
In shorter words,
Day One: does the Anti-Injunction Act (which makes a taxpayer wait until a tax has actually been paid before he can bring suit) stop this suit? If it doesn’t, does Congress have the power to make someone buy health insurance?
Day Two: Whether Congress can withhold Medicaid funds unless states provide services required by the Act that Congress can’t order the states to provide. And if the requirement to buy insurance is unconstitutional, does the whole health-insurance law have to be declared unconstitutional, or can they just cut out the requirement and leave the law otherwise intact.
Day Three: More of the same issue of whether you can slice out the insurance requirement without scuttling the law.
Okay, maybe those weren’t fewer words. . . .
So sue me
Anyway, the betting line goes as follows: The Anti-Injunction Act probably won’t preclude this suit; the mandate to buy insurance will be upheld; and
I don’t know what folks are saying about what happens if the mandate is unconstitutional. What happens under the Act, which does not have a “severability” provision (expressly leaving intact the rest of a law if a part is deemed unconstitutional). Everyone agrees the law would be awfully hard to continue to implement if everyone isn’t required to participate.
On the mandate, you can predict this argument
from the challengers: it is unprecedented for Congress to order you to buy something in order to regulate you and what you bought (and otherwise wouldn’t have bought). The mandate doesn’t regulate interstate commerce; it attempts to regulate the absence of interstate commerce. And there is no limiting principle – if Congress can legislate in this area (where the affected persons are doing nothing), Congress can regulate anything – which wouldn’t be consistent with the long-held idea of there being a limit on Congress’ authority that is partially opened by Article I’s enumerated powers.
from the defenders: It isn’t really unprecedented – the Court has upheld many laws that get down into the weeds where people aren’t engaged in interstate commerce. Literally into the weeds – a lady growing reefer for her own use can still be regulated under the Commerce clause, and a guy growing wheat for his own use can still be told to burn his wheat. Plus, somebody whod doesn't buy health insurance isn't doing nothing -- he's aging, or coughing, or eventually getting sick and dying. And there is a limiting principle – if it’s truly a type of Commerce that can’t be addressed by a state, but must be addressed nationally as interstate, then it’s within the broad power of the Commerce Clause.
It’s a damned tough argument. The will of the people, through its representatives, enacted a national program to deal with a national problem, and under the Commerce clause can’t achieve its national ends without the mandate. The Court has already decided that the Commerce Clause is a remarkably broad grant of power. And precedent should be respected.
On the other hand, there seem to be no limiting principle, and the social contract will be completely re-written if the Commerce Clause is interpreted to grant unlimited authority over all activity. Housing, transportation, education – even at their most “local,” they affect interstate commerce. And fuck the “eat broccoli” hypothetical – what happens when Congress mandates that each child take a school aptitude test. And that students must attend the college that maximizes their economic potential based on the test. A broad Commerce clause wouldn’t prohibit Congress from doing it.
I know -- sure, it's absurd. COngress would never do that.
Sure. And an energized electorate faced with some problem – the economic 9/11 – could well fall in love with idea when TV presents it as a solution.
I see the strength of each side’s arguments (which I present badly here). And the precedent is striking in its sweep. That’s why the pundits think the statute’ll be upheld. But since I fear and doubt an unrestricted government, it shouldn’t shock any of you that I’m skeptical of the government’s right to order you to do shit.
I say “do shit” so that I lessen any expectation you might have that I remotely know what I’m talking about. . . .