Universal Health Care: Is It Constitutional?

The heart of the challenge to the new federal health-care program is this image: an individual is doing nothing at all, bothering no one, when suddenly a federal bureaucrat appears and requires him or her to buy a commercial product or pay a tax. The program's opponents claim that, in the guise of regulating commercial activity, it regulates "inactivity." This, it is claimed, is unprecedented and tyrannical.

Three federal courts so far have taken a first look at the argument. One, in Michigan, rejected it. The second, in Virginia, indicated that it needs careful consideration. The third, Thursday's ruling from a District Court in Florida, bought it hook, line, and sinker.

When I read the argument about whether the government can regulate "inactivity," though, I can't help thinking about Ollie's Barbecue in Birmingham, Alabama. Ollie's was a neighborhood eatery. It never advertised. And when Congress passed the Civil Rights Act of 1964, Ollie's owner went to court to argue that Congress could not possibly regulate his private, local business and its personal decision of whom not to serve. A three-judge federal panel agreed: "No case has been called to our attention... which has held that the national government has the power to control the conduct of people on the local level because they may happen to trade sporadically with persons who may be traveling in interstate commerce."

At the time that decision was rendered, those arguments were taken quite seriously. Discrimination on private property was "private," it was argued, even when that property was open to the public; unless the owner chose to involve the property in interstate commerce, Congress was overstepping the Commerce Power in trying to regulate it.

Fortunately for us all--including the people, black and white, of the South--the Supreme Court rejected this argument and sustained the Civil Rights Act of 1964. That Act, more than any other single piece of legislation or court decision, is what made the United States a single, prosperous, unified market. No one (except Rand Paul), looking back, can muster any real regret that the Ollie's Barbecues of the nation were compelled to assist in their own success. And few people today would seriously argue that a local business that discriminates is somehow not affecting commerce.

Now the argument is advanced that the individual who chooses to do without insurance for his or her family is making a purely private choice, like not liking Brussels sprouts. "Those who fall under the individual mandate either comply with it, or they are penalized," wrote Judge Roger Vinson in the decision of the Florida court. "It is not based on an activity that they make the choice to undertake."

One can agree with Judge Vinson up to a point and still believe he got the issue completely wrong. The tax penalty imposed by the new legislation on individuals who refuse to insure their families really isn't based on something most of them can choose to do or not to do. It's based on something they almost certainly do not, and probably cannot, refuse to do: consume health care services. No matter how thrifty and antisocial any of us may be, no matter how devoted to homeopathy and Yoga, eventually virtually all of us will end up in an emergency room, hospital, or hospice. Even if by extraordinary effort we prevail on others to stand by and allow us to bleed out on the rumpus-room floor, we usually cannot convince them, no matter how earnestly we plead, to let our children die; state law will require they be treated. And someone will pay the cost. That you were "inactive" in getting them the care your children require should not exempt you from being the one who pays their bills.

Before health reform opponents decided that health care is not commerce, they used to point out that health care consumes one-sixth of our gross domestic product. The argument that we aren't affecting commerce is like the argument that a segregated Ollie's wasn't influencing commerce. Of course it was; of course we are. The only real issue, as the government has pointed out, is how and when we will pay for the services we will consume.

To deny Congress the power to regulate that impact on the ground that the individual doesn't "choose" to have it is in essence to substitute let's-pretend for grown-up economics. When the Constitution was ratified, a certain number of Americans really exist outside interstate commerce. They raised food crops for themselves, wore homespun clothing, used no "cash money," and often never ventured more than a few miles from where they were born. Had George Washington descended on their cabins brandishing mandatory insurance, they would have had every right to question his constitutional warrant.

That country and those people are gone; there is no way to live outside of commerce any more. Most of these inveighing against the "individual mandate" are wearing clothes made in China, eating food grown in Mexico, watching Fox News Channel programming bounced off satellites, and consuming prescription drugs developed with federal research funding. Their decision to put off insuring their families has a huge impact on their neighbors and on the nation as a whole. Congress would not have power over "commerce with foreign nations, and among the several states, and with the Indian tribes" if it could not reach that choice. And the Constitution--the one the right claims to revere--says it does.

In considering the Ollie's Barbecue case, Justice Hugo Black (an Alabaman himself) agreed that the Commerce Power could reach even a small restaurant like Ollie's. In a concurrence, though, he wrote, "I recognize too that some isolated and remote lunchroom which sells only to local people and buys almost all its supplies in the locality may possibly be beyond the reach of the power of Congress to regulate commerce." Ollie's, he said, wasn't such a place.

Similarly, there may be a Grizzly Adams living in the hills of Idaho who lives only on what he grows, wears only what he weaves, and hasn't heard the news that Lincoln was shot. If the Act's opponents can produce this recluse, I will write an amicus brief supporting his challenge to the tax penalty as it applies to him--assuming, that is, that he actually has managed to generate, entirely from intra-state commerce, enough income to be required to file a federal tax return-- since if not he will be immune to the penalty.

Virginia AG Ken Cuccinelli and Florida AG Bill McCollum are not such creatures; neither are the millions of citizens whom they seek to "liberate" from modern universal health coverage. If those citizens truly object to the tax, they don't need a court's permission to vote out those who enacted it.

Bad as that would be, it would be a far better outcome than having a Judge set the Act aside, based on the fantasy that we can all stay out of commerce if we just don't clap our hands.

Garrett Epps is a contributing editor for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.