Does Obamacare Violate the Constitution?

By Joan Indiana Rigdon

Right now, late-stage brain cancer and common headaches have some things in common: they are both examples of preexisting conditions. Patients who have, or who have ever had, either condition, or any medical malady in the gulf between, can be denied health insurance or charged a lot more for it. That is the way health insurance has always worked.

But under the Patient Protection and Affordable Care Act (Affordable Care Act) passed last spring,[1] by 2014 health insurance companies no longer will be allowed to deny coverage or charge higher rates to applicants with preexisting conditions.

To ensure that people do not take advantage of this change by simply waiting until they are sick to buy insurance—a trend that would drive the entire industry out of business—the act includes another highly controversial provision: starting in 2014, almost every American will be required to purchase health insurance from the insurer of their choice. Those who cannot find affordable insurance will be exempted.

The idea is to offset the increased cost of covering people who cannot get coverage today with a huge increase in the number of people paying premiums. Currently, only 80 percent of Americans have health insurance (according to statistics released by the Centers for Disease Control in November 2010, the number of uninsured Americans was just under 59 million).  Supporters of the Affordable Care Act say the law will make health insurance coverage nearly universal.

Americans who do not buy health insurance will not be found guilty of a crime; but if they are due a tax refund, the government will withhold money from that refund. In 2014 the penalty will be the greater of $95, or 1 percent of income, as long as the amount is not greater than the cost of a basic health insurance plan. In 2016 the penalty increases to as much as $695 per adult, or up to 2.5 percent of household income.

The insurance industry and patients’ rights advocates are still arguing the merits of government intervention into health insurance. But it is the mandate that almost every American buy insurance that has raised the eyebrows of constitutional scholars around the nation.

Opponents of the mandate aggressively are pushing for their day in the U.S. Supreme Court. In November the Court denied certiorari to Baldwin v. Sebelius, a preliminary challenge to the individual mandate to purchase health insurance, because the challenge had not yet been heard at the federal appeals court level.

Baldwin, brought by former Republican California state legislator Steve Baldwin, posed two questions: Whether the requirement that all Americans have health insurance by 2014 can be challenged now, and whether the insurance mandate itself is unconstitutional. The U.S. District Court for the Southern District of California dismissed the case, saying that no individual or company had been harmed by the mandate since it has not yet taken effect.

Meanwhile, as of this writing, more than 20 states have joined efforts to challenge the constitutionality of various parts of health care reform, with most of those challenges targeting the individual mandate. The Supreme Court’s decision to deny cert to Baldwin does not affect those cases.

Supporters of the mandate have argued that it is constitutional under the Commerce Clause generally, under the Necessary and Proper Clause of the Commerce Clause, and under Congress’ power to tax. 

Opponents insist that it is nothing less than a “commandeering” of the American people—an unconstitutional attempt to force Americans to buy a product that is heavily regulated by the government.

If courts agree that Congress can use its taxing authority to mandate the purchase of health insurance, that decision will have huge ramifications, says Randy Barnett, a professor of constitutional law at Georgetown University Law Center. “If Congress could do this for this reason, [it] could do anything for this reason” as long as it can call the consequence for noncompliance a “penalty.”

Congress “could make you have an abortion. They can make you buy a car from [General Motors]. They can make you work in the defense industry,” Barnett adds.

Jack Balkin, a professor of constitutional and First Amendment law at Yale Law School—and, coincidentally, a long-time close friend of Barnett—counters that the individual mandate is a form of social insurance. “It is reckless to call social insurance a commandeering of people,” Balkin says.

“There is a long history of Americans participating in social insurance: progressive income tax, pension schemes for veterans, the social welfare net, [including] Social Security, the pension disability features of Social Security, the retirement features of Social Security.

“The United States has a system whereby tax money is used to subsidize others who are less fortunate. This is not a new idea. To call it commandeering of the people is reckless.”

Commerce Clause
As the Affordable Care Act wended its way through Congress, its supporters argued first and foremost that the individual mandate was constitutional under the Commerce Clause and, in particular, under the Necessary and Proper Clause of the Commerce Clause.

The Commerce Clause refers to the federal government’s power to regulate commerce “among the several States” as enumerated in Article I, Section 8, Clause 3 of the U.S. Constitution. The Necessary and Proper Clause refers to the last clause in Section 8, which gives the federal government the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers . . . .”

Simply put, if Congress wants to reform health care, it can do so because health care is a huge part of the nation’s commerce. And it can make any law that is necessary and proper to execute that reform, Balkin says.

“The Affordable Care Act seeks to reform health insurance practices so that health insurance companies cannot deny coverage because of preexisting conditions, and cannot impose lifetime caps on coverage, and cannot engage in other practices that Congress feels are unfair.

“In order to make these reforms effective,” Balkin continues, “Congress has to bring in people who are uninsured. If Congress only did the popular stuff—[for example,] require that health insurers accept people with preexisting conditions—then people would wait until they got sick” to buy insurance “and that, in turn, would drive up premiums, so that would make it unaffordable, and the reform would not work. Because of the nature of health insurance markets, which rely on risk-pooling of both individuals who are healthy and not healthy, it’s necessary to bring uninsured people into” the risk pool.

To not do so would result in an “adverse selection death spiral,” according to Mark Hall, a health care law and public policy professor at Wake Forest University School of Law. He points to Kentucky, which banned insurers from denying coverage to people with preexisting conditions. “The markets kind of quickly went into a spiral. The insurance companies pulled out of the market. The legislature quickly stepped in and repealed the law,” Hall says.

Examples like this prove the mandate is crucial under the Necessary and Proper Clause, Hall adds. “These are the factual premises. They’re not just imagined. It’s not again just a matter of things working out better. It just wouldn’t be feasible to just have the insurance regulations without the insurance mandate.”

Non-Economic Activity?
Asked to identify the strongest argument in favor of the mandate’s constitutionality, Barnett says it is the idea that a mandate is “necessary” to enforce the regulation that strikes down preexisting condition clauses.

But, Barnett adds, he has become more critical of that argument over time. “The more I thought about it, I realized that courts have already devised a doctrine to govern what’s necessary. It’s called the ‘substantial effects’ doctrine. If you go back and see where it came from, it comes from the Necessary and Proper Clause doctrine.

“It allows Congress to do a lot, and then draws a line. It currently draws a line at non-economic, intrastate activity. When Congress talks about reaching interstate activity” through the Commerce Clause, “it is limited to economic activity,” he argues.

“What I wasn’t fully appreciating is that there’s no wording in U.S. v. Lopez in 1995, or U.S. v. Morrison in 2000, or in the Raich case [Gonzales v. Raich in 2005] that says Congress can use the Commerce Clause to reach non-economic activity,” Barnett says.

In United States v. Lopez, federal agents charged a high school senior in San Antonio, Texas, with violating the Gun-Free School Zones Act of 1990 by possessing a .38-caliber handgun on school property. Congress had identified the Commerce Clause as its authority for passing the act.

In a 5–4 majority decision delivered in 1995, the Supreme Court ruled that the Commerce Clause did not give Congress the authority to regulate the possession of guns on school property. The law “neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce,” Chief Justice William Rehnquist wrote for the majority.

“To uphold the Government’s contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert Congressional Authority under the Commerce Clause to a general police power of the sort retained by the States.”

But the decision goes on to set a standard for when the Commerce Clause can reach an intrastate, non-economic activity. It can do so when that activity is “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated,” Justice Rehnquist wrote.

United States v. Morrison
In United States v. Morrison, a Virginia Tech student alleged that two fellow students had raped her, and eventually sued them under the Violence Against Women Act of 1994. Section 13981 of the act provided for a federal civil remedy for victims of violence that is motivated by gender.

Congress had cited the Commerce Clause and the Fourteenth Amendment as the source for its authority for passing Section 13981. In a 5–4 decision delivered in 2000, the Supreme Court cited its reasoning in Lopez and declared that Congress did not have the authority to pass the statute because “gender-motivated crimes of violence are not in any sense of the phrase economic activity.”

In his announcement of the Court’s decision in Morrison, Chief Justice Rehnquist took an additional swipe at the argument the government had presented in Lopez. The government had argued that gun-related violence did have economic effects because it affects travel and insurance industries, and because guns on school property have a detrimental effect on education, which ultimately affects national productivity.

Chief Justice Rehnquist derided these arguments as “house-that-jack-built reasoning” that “would obliterate the Constitution’s distinction between national and local power.”

Gonzales v. Raich
Gonzales v. Raich stemmed from two seriously ill women who lived in California, where state law has allowed the medical use of marijuana since 1996. Angel Raich had been diagnosed with an inoperable brain tumor; Diane Monson suffered from degenerative spinal disease. Both were using marijuana as prescribed by their physicians. Monson was growing her own; Raich obtained hers free of charge from people she identified as caregivers.

In 2002 the U.S. Drug Enforcement Administration seized and destroyed all six of Monson’s marijuana plants, citing its authority under the federal Controlled Substances Act (CSA).

In a lawsuit filed in the U.S. District Court for the Northern District of California, Raich and Monson argued that the medical necessity doctrine precluded the federal government from enforcing the CSA to prevent their medical use of marijuana.  They sought a preliminary injunction. The Northern District Court of California denied the injunction, saying that the plaintiffs’ argument was unlikely to win on its merits.

On appeal, the U.S. Court of Appeals for the Ninth Circuit ruled that the plaintiffs had a strong likelihood of success with a different argument: that the CSA was an unconstitutional use of Congress’ authority under the Commerce Clause. The Supreme Court granted cert in the case in 2004.

In a 6–3 majority decision handed down in 2005, the Supreme Court ruled that although the patients’ use of medical marijuana did not cross state lines and that the marijuana was not sold—it was homegrown and consumed entirely within California—it did, in fact, have a substantial effect on interstate commerce. “Prohibiting the intrastate possession or manufacture of an article of commerce is a rational means of regulating commerce in that product,” Justice John Paul Stevens wrote for the majority.

Attorneys for Raich and Monson had read Lopez and Morrison too widely—those cases did not apply because they were related to purely non-economic activity, Justice Stevens wrote.

Homegrown Wheat
Instead, Stevens cited Wickard v. Filburn, a 1942 case in which a farmer argued that Congress did not have the power to penalize him for growing 12 acres of wheat beyond his production allotment because he did not sell the wheat; he used it on his own farm.

In a unanimous decision, the 1942 Supreme Court ruled that the farmer’s cultivation and consumption of wheat, even a trivial amount such as 12 acres, had a “substantial economic effect on interstate commerce.” Even if the wheat is never sold, “it supplies the need of the grower which would otherwise be satisfied by his purchases in the open market,” Justice Robert H. Jackson wrote for the majority.

Wickard “established that Congress can regulate purely intrastate activity that is not itself ‘commercial,’ i.e., not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity,” Justice Stevens wrote in Raich.

Barnett, who represented Raich at the Supreme Court, argued that Congress could not use the Commerce Clause to reach Raich and Monson’s non-economic production, acquisition, and use of marijuana because the activities were not economic.

Justice Stevens declared the activity was economic, citing as proof the definition of “economic” provided in a 1966 edition of Webster’s Dictionary: “the production, distribution and consumption of commodities.”

Barnett quips: “If we’d only known that that was what mattered, we could have produced a lot more contemporary dictionaries.” In his 2005 article “Limiting Raich,” published in The Lewis & Clark Law Journal, Barnett went further. A future Court could limit Raich by arguing that the definition of the term “economic” should not be defined by one “archaic” dictionary decision, he wrote.

However, today, Barnett is encouraged that Justice Stevens based his opinion on the definition of “economic.” “It’s actually a good thing. It means that [Justice Stevens] was not undercutting the doctrine. The doctrine still exists that it has to be an economic activity” to be regulated under the Commerce Clause, he says. “The government had another theory that Congress could reach any activity that substituted for a marketplace good.”

If the Court had upheld the substitution theory, “that would have been a very sweeping decision. But the Court implicitly rejected it in favor of a 1966” definition of what is economic, Barnett says.

To Ilya Shapiro, a senior fellow in constitutional studies at Cato Institute and editor-in-chief of the Cato Supreme Court Review, it is clear that Raich means the Commerce Clause cannot reach the individual mandate. “The Commerce Clause argument fails because [the individual mandate] is a regulation of non-economic inactivity. It doesn’t fit into the outer limits of Raich, of [Justice] Stevens’ majority opinion,” he says.

Scalia’s Concurrence in Raich
Supporters of the individual mandate to purchase health insurance take heart from Raich, and, in particular, from part of Justice Antonin Scalia’s concurring opinion.

“The question in Raich is whether or not Congress can reach people who merely grow medical marijuana for their own use,” says Balkin, the Yale professor. “The Court says it’s economic activity, and then what [Justice] Scalia says is, ‘I’ll go you one better. Even if it’s not economic activity, Congress needs to regulate homegrown marijuana,’ because if it doesn’t, ‘that would undermine general regulation of the market for marijuana.’

“And according to the Necessary and Proper Clause, Congress has the power to regulate local non-economic activity when that’s necessary to regulate general commerce. [It has] that power through the Necessary and Proper Clause.”

If that is so, Balkin says, Congress has the power to regulate an individual’s decision not to buy health insurance because failing to do so would impair Congress’ ability to regulate general commerce in health insurance.

Following Justice Scalia’s argument, “even if you don’t think that your self-insurance is an economic [activity], nevertheless, Congress needs to regulate” in order to regulate health insurance, Balkin adds.

Barnett believes that supporters of the individual mandate are reading too much into Justice Scalia’s concurrence in Raich. “Two things about that: one, it’s a concurring opinion, so it’s not current doctrine,” Barnett says.

“Two, if you take that doctrine as it’s enunciated by [Justices] Scalia and Stevens and Rehnquist, it says, ‘If in the course of regulating interstate activity, in order to do that, if it has to reach non-economic intrastate activity,’ it may do so under the Commerce Clause.”

However, “it’s all about activity,” Barnett emphasizes. “It’s not about inactivity. It’s all about when you can reach interstate non-economic activity.”

Barnett concludes, “If the people [who] support [the mandate to buy health insurance] are relying on Justice Scalia’s interpretation of his own theory, I think they’re going to be disappointed. I think [Justice] Scalia is more than capable of seeing the limits of the theory that he himself offered. If I were the lawyers for the federal government, I would not feel really confident interpreting” Justice Scalia’s concurrence in the government’s favor.

“It’ll take him 30 seconds to conclude that it doesn’t apply to an economic inactivity,” Barnett says.

Shapiro agrees. If not buying health insurance “qualifies as an economic activity, then there are no limits under Congress’ decision to regulate under the Commerce Clause,” Shapiro says. There are supposed to be constitutional limits on Congress’ power. If this goes through, I don’t see any more limits remaining.”

To Balkin, these arguments are mathematically unsound. “People who do not purchase insurance are actually engaged in an economic activity because they self-insure and they substitute. They borrow money from their families; they purchase over-the-counter medicines and medical treatment. And they also show up at emergency rooms and cost an estimated $43 billion a year in uncompensated care. That’s a lot of economic activity. And that economic activity has a substantial effect on commerce,” he says.

Under the individual mandate, “instead of engaging in that kind of economic activity, individuals will be asked to purchase health insurance.”

Barnett insists that an individual’s decision not to buy health insurance, or any product, cannot be considered activity, just as an individual’s decision not to sell a house is not activity—even though, multiplied many times over, it has a substantial effect on the housing market.

“Not selling your house is not activity. We make a fundamental distinction—all of law makes a fundamental distinction between acts and omissions. It is not murder to fail to rescue a person. It’s murder to kill them,” Barnett says.

Commandeering the People?
The preceding arguments all address the question of whether the individual mandate is “necessary” for Congress to effectively regulate interstate commerce in health care.

The other half of the question is, Is it proper?

Barnett staunchly believes it is not. The Constitution makes mandates of very few actions on the part of citizens, and those actions are all related to Americans’ duties to their country, he says. “You’ve got to register for the Selective Service. You’ve got to file an income tax return. You have to file a census form. You have to serve on a jury.”

In 1792 the Militia Act did require citizens to provide their own ammunition and musket to defend the nation. But that mandate, along with modern ones, are justified because they are related to “some of the essential attributes of citizenship. It’s what you have to do for the government in return for what government does for you,” Barnett says.

Hall, the Wake Forest professor, disagrees with the idea that Congress has never before forced citizens into transactions. In addition to the Militia Act, there’s the Takings Clause of the Fifth Amendment, which requires government to pay “just compensation” when it takes private land for public use.

“Both of these examples are as old as the country itself. Some argue that, somehow, Congress using forceful authority as part of the Necessary and Proper Clause—using authority that forces people to engage in transactions they don’t want to engage in—[is] inconsistent with the original intent of the Constitution, Hall says. That argument, he adds is refuted by those two mandates.

Aside from what the Founders thought, Balkin addresses Barnett’s argument by insisting that the individual mandate to purchase health insurance is related to a citizen’s duties to his or her country.

“In 1792 people were required to give up their lives for the Republic. . . . Now, we understand our duties to our fellow citizens differently. We pay our taxes. We contribute to larger social programs. The [Health] Care Act is such a social program. It makes it possible for all Americans to have health insurance. It does so by bringing everyone into the pool for insurance,” Balkin says, adding that “the idea that [the individual mandate] is a commandeering of the people is not a very plausible claim.”

He argues that health insurance is not just any good; it has very particular attributes. Therefore, courts can uphold a mandate to buy health insurance with reasoning that such mandate would not apply to other products such as toasters or cars.

For “a very narrow holding” on why Congress can mandate the purchase of individual health insurance, Balkin says the opinion is this: “National insurance markets are at stake. The good involved is insurance, and health insurance is a unique kind of good that depends on a risk pool that everyone has to join. And almost everyone will. There are very few goods like that. It’s almost a unique good.”

But almost everyone ends up purchasing health insurance, Barnett counters, whether it’s when they’re young and healthy, or older and paying Medicare premiums. “For that reason, Congress can say, ‘Get in the risk pool now. Don’t wait,’” he says.

“If you wanted to craft a very, very narrow way of deciding the case, that’s the way you’d write it.”

A Taxing Issue
Balkin believes the best argument for the constitutionality of the individual mandate is that it is a tax. “It is an amendment to the Internal Revenue Code. It is collected on your tax return. It is collected by the Internal Revenue Service (IRS). It’s computed based in part on your income. It’s a tax,” Balkin says.

“The test for whether or not a tax is constitutional is whether or not it raises revenue, and whether or not Congress could reasonably conclude that it promotes the general welfare of the people. This tax is estimated to raise some $4 billion a year, and in Congress’ estimation, it promotes the general welfare” because it makes health insurance more affordable.

Technically, however, the mandate does not identify itself as a revenue raiser, Barnett says. “There’s a section in which they identify all the revenue provisions in the bills. They need to do that for the purposes of scoring it; they’ve got to find all the revenue. And they didn’t include the mandate as one of the provisions. The definition of a tax is that it produces revenue for the government. The penalty is to penalize an action or an omission. Tax is a revenue raiser and this [statute] doesn’t include revenue. It doesn’t count as revenue to the government. They don’t count anything. Therefore, the penalty is not counted as a tax,” he says.

Balkin had advocated from the early days that the individual mandate be framed first and foremost as a tax that raises revenue for the general welfare. So he was upset in the fall of 2009 when he saw President Obama tell ABC News chief political correspondent George Stephanopoulos that the mandate was not a tax. Stephanopoulos was armed with a Merriam-Webster’s Dictionary—presumably a more recent version than the 1966 edition Justice Stevens consulted for the definition of “economic” while writing for the Court in Raich.  President Obama countered with the argument that buying health insurance was a civic responsibility. “For us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase,” the president said.

While sitting on a recent health care panel hosted by the American Constitution Society, Balkin shuddered at the memory. “I said, ‘Barack Obama, you are going to rue the day you said that.’ He has not been honest with the American people. This is a tax, and because it’s a tax, it’s constitutional,” he told the audience in that forum.

Then why did President Obama say it wasn’t a tax? “Because Obama is a politician. Politicians say things to please their constituents,” Balkin tells Washington Lawyer. “Whether or not it’s a tax, from the point of view of the Constitution, does not depend on whether any politician on a Sunday news show says that it’s not a tax. That’s not the test.”

Barnett insists that the mandate is not a tax in either form or substance. “The form of the mandate is a regulation. The regulation is not a tax. It’s billed as a regulation, as a statute. There’s a requirement, and then there’s a penalty. The requirement is in one section, the penalty is in another section. If the requirement is not a tax, the only thing they’re saying is that the penalty related to the requirement is a tax. But if the requirement can’t be justified as a regulation, there is nothing for the penalty to enforce,” he contends.

“That is what the statute says. That’s what I’m going by. I know Jack wishes” it were a tax, Barnett says of Balkin, who had advised policymakers to frame the mandate as a tax. “But they didn’t say this thing was a tax because they got stuck with the Senate bill because Scott Brown was elected, and the Senate bill says it’s a regulation of Congress,” Barnett adds. (Brown’s election to the seat vacated by the late Sen. Ted Kennedy of Massachusetts gave the Republicans enough votes to sustain a filibuster against the health care bill.)

Barnett believes that because the statute is not called a tax, courts, including the Supreme Court if the case makes it there, will not consider it a tax. “The Court has never looked behind a regulation of Congress to reconstruct whether it would be constitutional if it were a tax,” he says. “There are no cases that I’m aware of where they’ve done that.”

Shapiro agrees. “Courts won’t look behind Congress’ actual and stated purpose. I think, ultimately, the taxing power argument is a red herring.”

Balkin says that argument is wrong. “The test is whether the tax passed by Congress is constitutional. Therefore, the courts are required to look at the entire list of enumerated powers, including its power to tax,” to decide that. “It is not, in fact, a difficult case, which is why opponents of the individual mandate try to argue that what is a tax is not a tax,” Balkin adds.

“I have no doubt that if the Supreme Court applies the law as it currently exists, the individual mandate will be held constitutional. The only way the Supreme Court could strike down the individual mandate is if it significantly changed the law. This would be a significant form of judicial activism by the Supreme Court and would significantly change decades of law, going back not only to the New Deal, but to the 1850s and even further to Hylton v. United States in 1796.”

 Hylton, a case involving the constitutionality of carriage taxes, “construed the meaning of a direct tax,” Balkin says. “Direct taxes were limited to capitation taxes and taxes on real property. Capitation taxes are taxes that you impose on people because they’re alive.”

When it comes to the issue of the tax penalty levied against individuals who fail to purchase health insurance, “The question is, Is the tax involved a direct tax or a capitation tax? If it is a direct tax, then you have a problem, a constitutional problem, because it is not apportioned to states’ populations. Is it a direct tax? No, it is not a direct tax. Is it a capitation tax? No, it is not. A capitation tax falls on you no matter what,” Balkin says.

According to Balkin, one can easily get out of paying the penalty for the individual mandate. “All you have to do is buy health insurance. That’s all that matters. It is not a capitation tax. It is not a direct tax. It’s an indirect tax and, therefore, it’s constitutional.”

Since it is a tax, he continues, the individual mandate cannot be construed as a “commandeering of the people.” “If you want to say [the individual mandate to purchase health insurance] is a commandeering of people, you’re saying that having to pay taxes is a commandeering of the people, which I think is not a very plausible claim.”

Barnett doubts the courts will uphold the mandate as a tax. “Here’s the reason the courts won’t go up there. Even if they hold up the [mandate], if Jack’s argument is right, then Congress has always had the power to regulate, prohibit, or mandate any activity by any person in the United States as long as [it] limited the sanction to a monetary sanction enforced by the IRS. Congress has always had plenary police power, but the Court has always denied that Congress has that power.”

That is the reasoning that leads Barnett to conclude that Congress could use the same power to force citizens into any behavior, including having an abortion or buying a car from a specific manufacturer. “They could do it just by calling the punishment a penalty” enforced by the IRS, he says.

Seeking Cert
Shapiro says it is possible the Supreme Court could accept a case by the tail end of its 2011 session. “Who knows? We could see a decision as early as June 2012,” he says.

As for what the Court will decide, “That’s a tough question. Unlike previous challenges to Congress’ power to enact big pieces of legislation, this [legislation] is unpopular, and there’s a consistency, to the extent that justices follow the elections returns, that might steal the spine of one or more of them who would otherwise be reluctant to strike down a central piece of an administration’s policy,” Shapiro says.

Barnett agrees that the legislation’s political popularity will play a key role in how the Supreme Court decides a challenge to the mandate.

“You start off with proposition that the Supreme Court will bend over backward to uphold acts of Congress. That’s principle Number One. [The Court] always [has]. The smart money says that’s what they’ll do this time, because they have the doctrine of the presumption of constitutionality. They especially want to uphold the bill if it’s popular. So the smart money says, Of course they’ll uphold the bill,” Barnett says.

“Then you start changing the assumptions. If the Court perceives that the bill is unpopular, if the Court perceives that it was passed by a bare partisan majority,” Barnett says it might balk at supporting it, adding: “It’s the first substantial legislation that’s passed by a bare partisan majority.”

As for the argument that the Court has not struck down social programs, including Social Security, Medicare, and civil rights, those “all passed with bipartisan support,” Barnett notes.

“So if one or both houses of a changing Congress” weaken in their support for the legislation, “and if [the justices] see Democrats who voted for the bill running away from it, at that point I think they would be open to valid constitutional objections to the [mandate]. And since I think there are valid constitutional objections to it, I think there could be five votes to strike down. If it’s unpopular, then I think there very well could be five votes to strike this bill down,” Barnett says.

Balkin says the mandate is part of the Obama administration’s economic policy, and should, therefore, be handled by voters and their elected officials.

“Going to the Supreme Court and complaining that you don’t like the economic policy of the Obama administration, and that you’d like a different economic policy, strikes me as the opposite of what conservatives have been saying for years about the roles of the judiciary. They’ve been saying, ‘Stay out of these issues and defer to the elected branches of government.’ Now judges are running amok and striking down laws.”

If justices strike down the individual mandate to purchase health insurance, “this would be the big act of judicial activism on steroids,” Balkin says.

As Washington Lawyer went to press, a federal judge in Virginia offered an indication that the justices ultimately will have to decide. Federal Judge Henry E. Hudson of the Federal District Court in Richmond ruled that the mandate exceeded the authority granted to Congress under the Commerce Clause. Hudson’s decision conflicts with those handed down in two other jurisdictions.

Note
[1] On March 30, 2010, President Obama signed the Health Care and Education Reconciliation Act of 2010, which amends the Patient Protection and Affordable Care Act.

Freelance writer Joan Indiana Rigdon wrote about filibuster reform in the September 2010 issue of Washington Lawyer.