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Tuesday, December 14, 2010

Health and the Constitution

The New York Times reports on a decision that illustrates the importance of the Commerce Clause:

By contradicting two prior opinions, Monday’s court ruling in Virginia against the Obama health care law highlighted both the novelty of the constitutional issues and the difficulty of forging consensus among judges who bring differences in experience, philosophy and partisan background to the bench.

Judge Henry E. Hudson of Federal District Court in Richmond wrote with conviction that the law’s requirement that most Americans obtain insurance goes “beyond the historical reach” of Supreme Court cases that limit federal regulation of commercial activity. During the last two months, however, two other federal judges ruled with equal force that the provision fell squarely within the authority Congress was granted under the Commerce Clause of the Constitution.

Ultimately, the Supreme Court will have to resolve the conflict, and many court watchers already expect a characteristically close decision. But what is now clear is that the challenges from dozens of states to the law’s constitutionality can no longer be dismissed as frivolous, as they were earlier this year by some scholars and Democratic partisans.

“All the insiders thought it was a slam dunk,” said Randy E. Barnett, a professor of constitutional law at Georgetown University who supports the health care challenges. “Maybe a slam dunk like weapons of mass destruction were a slam dunk.”

The Supreme Court’s position on the Commerce Clause has evolved through four signature cases over the last 68 years, three of which have been decided since 1995. Two of the opinions — Wickard v. Filburn in 1942 and Gonzales v. Raich in 2005 — established broad federal powers to regulate even personal commercial decisions that, taken in the aggregate, may influence a larger economic outcome.

But two other cases — United States v. Lopez in 1995 and United States v. Morrison in 2000 — limited Congress’s regulatory authority to “activities that substantially affect interstate commerce.”

The central question before the courts has not been whether the health care market substantially affects interstate commerce, a point largely accepted by all sides. Rather, the issue has been a semantic one: determining whether the act of not obtaining insurance is best defined as activity or, as Virginia’s solicitor general, E. Duncan Getchell Jr., has argued in the Richmond case, “inactivity” that is beyond Congress’s reach.

As Forbes notes, the judge also commented on the taxation power as well as a purported shortcoming in deliberation. The judge's decision highlights the role of legislative history.

In his decision, Hudson appears to criticize the Obama administration and Democrats in Congress, noting that “contrary to earlier representations by the Legislative and Executive branches,” Health and Human Services Secretary Kathleen Sebelius “now states unequivocally that the Provision is a tax.” The administration’s legal position was that even if the penalty exceeded Congress’ Commerce Clause powers it lay within the taxing authority. Hudson rejected that argument outright, saying the evidence shows Congress included the word “tax” in early versions of the bill then switched it to “penalty,” while still labeling the taxes on tanning salons and expensive health plans as such.

“This shift in terminology during the final hours preceding an extremely close floor vote undermines the contention that the terms `penalty’ and `tax’ are synonymous.”

Hudson also notes the difficulty of determining whether Congress intended the entire law to stand or fall on the insurance mandate Section 1501, “given the haste with which this 2,700-page bill was rushed to the floor for a Christmas Eve vote.”

“It is virtually impossible … to determine if Congress would have passed this bill, encompassing a wide variety of topics related and unrelated to health care, without Section 1501.