Sunday, October 9, 2011

Can Obamacare withstand a constitutional challenge?

Health care in America -- few topics could elicit more anger and frustration than this one. At the behest of President Barack Obama, a Democratic controlled Congress was supposed to find a plausible solution to the lack of insurance coverage in the country.

Instead, The Patient Protection and Affordable Care Act (more colloquially known as 'Obamacare') might have caused more problems than it solved. Its passage helped to further polarize America's two major political parties to what feels like an irreconcilable point.

In no small measure, the Affordable Care Act (ACA) caused the defeat of many incumbent Democrats in the mid-term elections of 2010. As such, the Republicans now enjoy a majority in the House of Representatives -- a rarity in history.

The ACA has plenty of merits, including ending the denial of health coverage for those with pre-existing conditions, bans on insurance companies dropping sick patients and prohibits placement of coverage limits on patients.

However many Americans became frustrated with a bill that required nearly 1900 pages and had plenty of legislative 'pork'. More importantly, one portion of the bill particularly wrangled Republicans. A section of the ACA mandates all Americans to purchase health insurance in some form by the year 2014.

Conservatives have contended the mandate on individuals and businesses to purchase health insurance is unconstitutional, as it is beyond the scope of the federal government's power to create such legislation.

The powers of the federal government are specifically listed in the Constitution and most assuredly not limitless. State governments are afforded whatever powers are not granted to the federal government (per the 10th Amendment).

This case should be relatively simple. Does the Constitution mention anything about the federal government crafting legislation pertaining to healthcare? In a word: no.

However, the federal government claims it does have power to create the ACA through what is known as the Commerce Clause. This portion of the Constitituion reads:

"The Congress shall have power to ... regulate commerce with foreign nations, and among the several states ..."

The Obama administration claims the healthcare industry is part of a class of economic activities relating to interstate commerce, thus falls under the realm of federal power.

Several states claim the ACA represents a power grab by the federal government and an overly broad application of the Commerce Clause.

As such, four separate lawsuits have been filed in courts that will eventually be merged together for consideration by the United States Supreme Court. The four individual cases have been adjucated by Federal District & Circuit Courts -- two upholding the constitutionality of the ACA and two striking down the law.

The Supreme Court will examine the decisions rendered in each of those cases, along with recent interpretation of the Commerce Clause. Three particular cases will be of use as precedent for the Court: United States v. Lopez (1995), United States v. Morrison (2000), and Gonzales v. Raich (2005).

In Lopez, the Court limited the scope of the Commerce Clause when they ruled the Gun-Free School Zones Act unconstitutional.  The law forbade individuals from knowingly carrying a gun in a school zone, which, according to the Court, did not qualify as interstate commerce because it did not relate to an economic class of activities, but rather a criminal statute pertaining to gun possession.

The Morrison case also saw the Court place a limit on the usage of the Commerce Clause, when they ruled Congress had exceeded its authority by passing the Violence Against Women Act, a law that allowed victims to sue an attacker in federal courts.  The ruling in the case hinged on logic similar to Lopez and noted that a victim of any violent crime already had avenues of seeking justice in a criminal court.

The distinction in both cases stemmed from the fact that neither piece of legislation was related to any class of economic activities that could be construed to be interstate commerce.  Thus, the Court was compelled to strike them down, implying that allowing the Commerce Clause to be interpreted so broadly not only railed aginst the Constitution, but could 'obliterate' the balance of power between state and national governments, giving the federal government the ability to rationalize nearly any law as somehow connected to interstate commerce.

Many outside observers calculated the Court would include this interpretation with faced with the dilemma presented in Gonzales.  The issue in this case dealt with Congress' regulation of marijuana through the Controlled Substances Act. 

California (and several other states) had legalized the use of marijuana as a remedy for pain in a limited capacity.  Two citizens challenged their arrest under federal law, stating their cultivation and possession of marijuana was 'intrastate' commerce and thus, not subject to federal regulation. 

The Court ruled the Controlled Substances Act could regulate even intrastate commerce because the growing of marijuana within state lines (by authorized users of California) would have a substantial impact on the supply and demand of the marijuana market.  Also, the production, distribution and consumption of marijuana creates a class of economic activity that is substantially different from the scenarios of Lopez and Morrison, which is why the Court did not adhere to those precedents. 

In these applications of the Commerce Clause, the Court has maintained the federal government can regulate interstate commerce if it meets any one of three criteria:  
(1) Congress can regulate the channels of interstate commerce,
(2) Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce, and
(3) Congress has the power to regulate activities that substantially affect interstate commerce.

And now, in 2011, the Court must consider the ACA and its individual mandate.

First, the field of health care and the complementary insurance program connected must be seen as economic activity.  The distribution of goods and services is undoubtedly ingrained into the health care industry.  Medical supplies, materials, equipment, and medical personnel (physicians and nurses) travel across state lines.  Congress would be justified in regulation of those channels and the people / equipment involved in medicine through both of the first and second criteria set forth by the Court.

Additionally, the Court noted in Gonzales that "... case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce."  How could one argue the health care and insurance industry don't have a substantial effect on interstate commerce?  Even if the health care industry was classified as 'intrastate,' the point would be moot, as the federal government could still regulate it based on the 'substantial effect' on interstate commerce.

The individual mandate falls within the scope the parameters previously mentioned.  Incidentally, mandating the purchase of a commodity is not without precedent itself.  Drivers of automobiles are required to purchase insurance for their car.  Critics counter that no one is required to have a car.  My response to that is simple.  Practically the entire population of the United States needs an automobile to function effectively in the United States. To suggest otherwise is ludicrous.

As a matter of following the Court's principle of stare decisis, I have to side with the federal government in stating the ACA is within their purview.

When this issue arrives at the Supreme Court, I would expect a 5-4 ruling in either direction, with the federal government prevailing, due to the case's similarity to Gonzales and a similar ideological makeup to the Court in 2006.

The ACA may or may not be good legislation, but it is within the power of the federal government to create such a law.


  1. "The individual mandate falls within the scope the parameters previously mentioned. Incidentally, mandating the purchase of a commodity is not without precedent itself. Drivers of automobiles are required to purchase insurance for their car. Critics counter that no one is required to have a car. My response to that is simple. Practically the entire population of the United States needs an automobile to function effectively in the United States. To suggest otherwise is ludicrous."

    That doesn't carry any weight since not all states require drivers to carry insurance at all times. Take the state of Ohio for example. Drivers in there are only required to have insurance at the time the vehicle is licensed in the state, not throughout its ownership.

    Plus, that activity is regulated by the state and not the federal government. Poor analogy to try to justify this monstrosity.

  2. I'm glad you addrressed all the other points. Even still, every state requires insurance on automobiles, even if the laws vary. It's a legitimate example of how a government can require or mandate a purchase.

    I also fail to see why the ACA is a monstrosity.

  3. How is it not? It will fundamentally change this country in a way that will slowly start to strangle out small businesses who can not afford to pay for the requirements. My parents will be out of business in the long term because of all the restrictions and extra costs it will place on them running their business.

  4. what about the more than tripling in cost now? has it become a monstrosity yet?