I know, I know: Who cares about the Constitution when millions of people don't have health insurance? After all, as George W. Bush said, "When someone is hurting, government must move." And we all know what Bush thought about the Constitution.
Yes, well, be that as it may, a few of us still hold some regard for the Constitution as written. Perhaps a few judges do, too. Georgetown law professor Randy Barnett writes in Sunday's Washington Post about some of the constitutional problems with health care reform, and notes possible remedies.
On the "Individual Mandate" and the Commerce Clause:
The individual mandate extends the commerce clause's power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying "cash for clunkers" is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.
On the the Cornhusker Kickback, the Louisiana Purchase, Gator Aid and other legislative horse-trades:
Congress can always argue that, say, an Air Force base in Nebraska benefits the United States as a whole. But the deals in the Senate bill are different. It is really hard to identify a benefit to all the states from exempting one state from an increase in Medicare costs or allowing only the citizens of Florida to get Medicare Advantage.
On the defunct 'Slaughter House rule':
The whole purpose of the "deem and pass" procedure -- which was advocated by Rules Committee Chairman Louise Slaughter -- was to avoid a separate vote on the Senate bill, which many House members find objectionable, and instead vote on the reconciliation bill and simultaneously "deem" the Senate measure passed. Although Democrats cited prior examples of deem and pass, "the Republicans did it" is not a recognized constitutional argument -- especially if the public and the justices have never heard of such a thing. This constitutional objection seems to have succeeded, as House leaders decided on Saturday to take a separate vote on the Senate version, rather than "deeming" it passed.
On 10th Amendment objections:
Under the 10th Amendment, if Congress enacts a law pursuant to one of the "powers . . . delegated to the United States by the Constitution," then that law is supreme, and nothing a state can do changes this. Any state power to "nullify" unconstitutional federal laws has long been rejected.
On constitutional amendments:
Ultimately, there are three ways to think about whether a law is constitutional: Does it conflict with what the Constitution says? Does it conflict with what the Supreme Court has said? Will five justices accept a particular argument? Although the first three of the potential constitutional challenges to health-care reform have a sound basis in the text of the Constitution, and no Supreme Court precedents clearly bar their success, the smart money says there won't be five votes to thwart the popular will to enact comprehensive health insurance reform.
But what if five justices think the legislation was carried bleeding across the finish line on a party-line vote over widespread bipartisan opposition? What if control of one or both houses of Congress flips parties while lawsuits are pending? Then there might just be five votes against regulating inactivity by compelling citizens to enter into a contract with a private company. This legislation won't go into effect tomorrow. In the interim, it is far more vulnerable than if some citizens had already started to rely upon its benefits.
Barnett suggests there is a clear, if unexpected, Supreme Court precedent here. Read the piece to find out what it is.
Update (Monday, March 22): Barnett participated in an online Q&A at the Washington Post today. Here's the transcript. He elaborates on several points in Sunday's piece, and makes several important observations. Of particular note is this exchange, given news today that at least 11 states are preparing legal challenges to the law:
Princeton, N.J.: A Professor Jost of Washington and Lee Law School was on C-SPAN this morning. He claims the states have no standing in this issue. He also says that since the individual mandate does not go into effect for 4 years, nobody has any standing until then.
He also said that the interpretation of the commerce clause has been so broad that any case likely to be thrown out. He gave many examples; the one I thought was striking was the partial birth abortion ban relying on the commerce clause.
Randy Barnett: Professor Jost has a very broad reading of federal power! I am not a big expert on "standing," but agree that states may not have standing to contest the individual mandate. They could contest the Cornhusker Kickback, etc. I also think that once the bill is signed any person who will be subject to its mandate could bring an immediate "facial challenge," but I could be wrong about this. As for why previous cases do not justify this extension, I may be able to explain this more as discussion proceeds.
Also: For more on why Barnett argues the individual insurance mandate is unconstitutional, see this Heritage Foundation legal memorandum.