Health Care Suits: Separating Law From Spin

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If a public figure walks on water at noon, by 3 p.m. a dozen talking heads will be explaining that he can't swim.

That's politics. But we can hope that federal judges won't think in sound bites.


The current lawsuits challenging the Affordable Care Act raise this question insistently. I return to this lawsuit in yet another column because I believe this case will dominate both constitutional law and political discourse over at least the next 12 months--and because I believe its stakes far transcend its immediate consequences, important though they will be. I think that if our federal courts are willing to sign on to the challengers' jejune theory of this case, not only we but our children will spend years dealing the malign consequences of the mistake. Nothing less than the ability of the United States to function as a modern nation may be at stake.

(Okay, I also return because I enjoy the comments that will shortly appear below accusing me of being Kim Jong Il, but that's a secondary reason.)

So far, in two of the pending lawsuits, opponents of the law have succeeded in spinning the judges, framing the lawsuits as posing the question whether (as Virginia argued) the federal government can "impose a penalty for what amounts to passive inactivity."

We know the talk-radio answer to this question: Tyranny! Death panels! Black helicopters! Praise the Lord and pass the ammunition!

But the judicial answer, it seems to me, should be two-fold.

The first, and most important, answer a judge should give is, "I dunno. Find a case where the government does that and get back to me." Because that description of the Affordable Care Act is simply inaccurate.

The second answer, which a judge shouldn't give but a Con Law jock like me can, is, "Why ever not?"

I will get to that one later; but first, let's deal with the canard that the Act somehow "penalizes inactivity."

Here's how Judge Henry Hudson put it in his decision in Cuccinelli v. Sebelius: The Act "requires that every United States citizen, other than those falling within specified exceptions, maintain a minimum level of health insurance."

This snappy apothegm is the logical equivalent of saying that the Defense Appropriations Act "requires that every United States citizen, other than those who leave the country, engage in accepting a minimum level of protection by the United States military." The provisions of the Health Care Act provide a benefit. The majority of Americans, who already have health coverage (and seem, by and large, to regard this coverage as worth bargaining for) will simply see improvements in their existing health care benefits, such as an end to lifetime benefit limits and the right to include older adult children on their policies. A significant number of others who are currently uninsured will become eligible for government-funded health insurance.

There will remain a small but significant number of Americans who can afford health care insurance but choose not to buy it. But contrary to the sound bite above, even they are not required to "maintain a minimum level of health insurance." If they wish to keep their uninsured status, they may do so by paying an addition to their income tax bills--ranging from as little as $695 for an individual taxpayer to $2085 for a family of six or more. The claim that the government is "forcing individuals to buy a commercial product" is worse than spin; it is simply false.

In fact, even the choice of procuring insurance or paying a tax is put not to "every United States citizen," or even "every United States citizen not already covered by insurance," but only to those who earn enough income to qualify as taxpayers. "A small fraction of fewer than half of United States citizens," though accurate, is much less thrilling to say, even for a judge, than "every citizen."

This brings us to the contention that the act somehow regulates "inactivity." Let's you and I test this proposition: why don't you just remain totally inactive in 2014, when the Act first takes effect.

Quit your job and get rid of your investments. The government will not regulate you. (True, it may offer you government-financed health care; but again, that is a benefit, not a regulation or punishment.)

But if you decide actually to work (I recommend that, by the way), you are not being "inactive." You are taking part in commerce. The Constitution gives Congress plenary authority "to regulate commerce with foreign nations, and among the several States, and with the Indian Tribes."

A system of regulation might easily include requiring you to pay taxes if you choose to burden commerce; willful refusal to maintain adequate health coverage for yourself and your family is such a burden. To claim otherwise doesn't pass the straight-face test.

Conservatives like to prate about "individual responsibility" when it is a question of forcing the poor to work; asking the solvent to pay for themselves seems quite in line with these conservative values.

And as to the idea that Congress can only regulate "activity," here again, verbal formulae are obscuring the practical truth. The Constitution does not say anything about "activity"; that's a gloss that the Rehnquist Court put on it, using language from earlier cases*. Nor does it refer to "interstate commerce," which to some (apparently including Justice Thomas) means men in knee breeches handing trinkets across state lines. The Constitution says that Congress may "regulate commerce . . . among the several states."

Chief Justice Marshall (who was a ratifier, though not a Framer, of the Constitution) wrote in 1824 that "among" means "intermingled with," not "between." Marshall wrote that Congress's commerce power reaches everything except that small set of matters "which are completely within a particular state, which do not affect other states, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government." Health care, and the citizen's economic relationship with it, most assuredly affect all the states, and individual decisions about insurance are an important part of that effect--just as a farmer's decision to raise private wheat are a part of agriculture's effect on commerce.

I am somewhat mystified why the state plaintiffs even have standing to appear. In order for them to be injured, the Act would have to infringe some power that is reserved by the Constitution to the states. Judge Hudson placed great emphasis on an obscure 1922 precedent called Bailey v. Drexel Furniture, in which a laissez-faire majority of the Supreme Court invalidated a federal tax on products produced by child labor. The tax, the Court reasoned, was an attempt to prevent exploitation of children in factories and mills; such labor regulations were "a purely state activity."

The Court has long since given up the idea that "labor laws" are solely state matters. But assume that in the formal sense Drexel is good law. So what? The tax, or penalty, in the Affordable Health Care Act doesn't regulate any "purely state activity." If it pretended to regulate commerce but was actually aimed at preventing divorce, or imposing a national zoning code, or requiring homeowners to maintain tasteful wallpaper, there might--might--be a Tenth Amendment issue. But not here: In the guise of regulating commerce, the Act regulates . . . commerce.

Here's the nub of the objectors' argument--it is not that this isn't a regulation of commerce, but that the Commerce Power isn't strong enough to regulate an entire national market. That kind of limitation on the Commerce Power finds no support in, well, the Constitution.

The doctrine under which the Act is being assailed quite simply constitutes a threat to most of the significant advances in federal law of the past 100 years: federal pension programs, national wildernesses and parks, consumer protection, environmental regulation, and most particularly statutory guarantees of civil rights.

It's not coincidental that right now Rand Paul* laments the Civil Rights Act and that Haley Barbour speaks fondly the segregated South, that anti-immigrant extremists target birthright citizenship, or that right-wingers seek to wreck the Constitution with an old-South style amendment letting states repeal federal laws. A decision to void the Act would furnish a powerful precedent for those who would "restore" a libertarian dreamland that never existed, and that for most of us would quickly become a nightmare.

The great achievement of the Framers--the one they clearly thought most important--was the creation of a national Congress with plenary powers in the spheres assigned to it. Trying to wreck Congress is warring on the Constitution.

That's not to say that Congress can regulate commerce by unconstitutional means. But the prohibitions on means are in the Constitution, not in the fevered brain of Cuccinelli & McCollum. If a new health care act were to restrict free speech, or impose ex post facto laws, or authorize bills of attainder, or deny due process, the courts should certainly step in.

But that's not what is at issue here.

Stripped of spin, the state plaintiffs are arguing that Congress can't use its commerce power to actually regulate commerce. If the courts buy this nonsense, they may fatally damage the power of Congress to manage a modern commercial economy. Repairing that mistake would involve far greater sacrifices than having to pay a tax.

_______________________________________________________________________________

*This post originally said Ron Paul and didn't credit earlier cases the court cited.  

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Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar. He teaches courses in constitutional law and creative writing for law students at the University of Baltimore and lives in Washington, D.C. His new book is American Epic: Reading the U.S. Constitution.

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