Legal Eagles On Obamacare

Checking the news at lunch today and the comments on the blog, I'm putting forth Zach Roth's exploration of SCOTUS and health care reform and the possibility of the law being overturned on constitutional grounds, namely the argument involving the health insurance mandate and the Senate's Commerce Clause (emphasis mine):

Last September, David Rivkin and Lee Casey, former Justice Department lawyers during the Reagan and Bush 41 administrations who played prominent roles in support of the Bush 43 administration's detention policies, noted in a Wall Street Journal op-ed that in a 1995 case, U.S. v. Lopez, the Supreme Court invalidated a law that made it a crime simply to possess a gun near a school, holding that the law did not "regulate any economic activity and did not contain any requirement that the possession of a gun have any connection to past interstate activity or a predictable impact on future commercial activity." Likewise, Rivkin and Casey wrote, a health-care mandate also wouldn't regulate any "activity." "Simply being an American would trigger it."

Randy Barnett, a professor of constitutional law at Georgetown Law School, agrees. "The individual mandate extends the commerce clause's power beyond economic activity, to economic inactivity. That is unprecedented," he wrote in a Washington Post op-ed that appeared this weekend. "Regulating the auto industry or paying "cash for clunkers" is one thing; making everyone buy a Chevy is quite another."

A July 2009 paper (pdf) for the conservative Federalist Society by Peter Urbanowicz and Dennis G. Smith, two former HHS officials, took a similar view. "While most health care insurers and health care providers may engage in interstate commerce and may be regulated accordingly under the Commerce Clause, it is a different matter to find a basis for imposing Commerce Clause related regulation on an individual who chooses not to undertake a commercial transaction," they wrote. 

Now, that's one side of the argument.  The key here is the interpretation that the mandate law chooses to assess a tax against someone who is choosing not to engage in economic activity, and therefore outside the scope of regulation of the Commerce Clause.  That's a fair argument by itself, but Roth continues with the other side (again, emphasis mine):

 But this view is by no means widespread, even on the right. Numerous constitutional scholars say the mandate is well within the scope of what the court has defined as commercial activity -- pointing to the 2005 case, Gonzales v. Raich, in which the Supreme Court found that the federal government could criminalize the growth and possession of medical marijuana, even when it was limited to within a single state, on the grounds that doing so was part of an effort to control the interstate drug trade.

Erwin Chemerinsky, the dean of the UC Irvine School of Law, noted in an op-ed in Politico last October that health-care coverage is far more closely related to commercial activity, and the national economy, than is the private growth of marijuana. "In 2007, health care expenditures amounted to $2.2 trillion, or $7,421 per person, and accounted for 16.2 percent of the gross domestic product," he wrote. And, he argued, the Supreme Court has never said that only people who are themselves engaged in commercial activity can be regulated under the commerce clause. For instance, the court found that the Commerce Clause could be used to require southern restaurants and hotels to serve blacks, even though what was at issue was their refusal to engage in commercial activity.

Jack Balkin, a constitutional law professor at Yale Law School, extends that argument. In a recent blog post, he notes that in the Raich case, Justice Scalia found that Congress can use the Commerce Clause to regulate, as Balkin put it, "even non-economic activities if it believes that this is necessary to make its regulation of interstate commerce effective" (itals TPM's). People who don't buy health insurance, Balkin argues, aren't simply "doing nothing," as Rivkin, Barnett et al. claim. These people pass on their health-care costs by going to the emergency room, or buying over-the-counter cures. "All these activities are economic, and they have a cumulative effect on interstate commerce," writes Balkin.

Several respected conservative legal experts essentially agree that the court would have to radically break with past rulings to strike down the law. John McGinnis, a former Bush 41 administration Justice Department official and a past winner of an award from the Federalist Society, told TPMmuckraker that the court could rule in favor of the AGs only by taking a radical Originalist view of jurisprudence -- one that all but ignores precedent. "I think the only person who shares [that view] is Justice Thomas." said McGinnis, now a constitutional law scholar at Northwestern Law School. "It's a very difficult argument to make under current precedent."

Doug Kmiec, a former Reagan administration Justice Department official, and conservative legal scholar, echoes that view. "The idea that a regulatory requirement (whether to purchase insurance or to purchase a smoke alarm) violates the Constitution by exceeding the scope of the commerce power was rejected in the age when Robert Fulton's steam ships were at the center of case controversy and the proposition has not gained validity with the passage into the 21st century," Kmiec, now the Obama administration's ambassador to Malta, told TPMmuckraker.

And Orin Kerr, a professor at George Washington Law School, who has served as a special counsel to Sen. John Cornyn (R-TX) and clerked for Justice Anthony Kennedy, likewise believes the bill is almost certain to pass muster. "I think it's very very unlikely that the mandate would be struck down as unconstitutional," Kerr told TPMmuckraker.

So, is it possible that it will be struck down?  Do the states have a point? They certainly have the right to sue, of course.  I honestly believe with this many state AGs behind it, the Supreme Court will have to take the case and make a ruling.  I believe given the arguments in this article that Obamacare's mandate provision would have no problem.

On the other hand, my opinion matters not in the end, but given the precedent and the arguments, especially Jack Balkin's argument that refusing to buy health insurance passes insurance costs on to others who do have it, that the Senate Commerce Clause does apply here.

After all, the idea of a mandate as cost control precisely because of Balkin's argument was the centerpiece of the Republican Party's ideas on health care cost controls.  Republicans like Iowa Sen. Chuck Grassley were for the mandate before they were against it.  He thought it was constitutional then, no problem.

Now it's just being used as an excuse to try to stop health care reform.  Let's not forget the partisan politics behind why all these Republican AGs are suing in the first place.