Is Partisanship Responsible for the Success of Constitutional Challenges to ObamaCare?

Legal eagles who’ve taken up the task of defending ObamaCare’s individual mandate have made a habit of asserting, in a tone that frequently suggests rolled eyes, that the requirement to purchase health insurance or pay a fine is obviously constitutional, and that only a flagrant partisan could believe otherwise. As David Rivkin and Lee Casey, two of the lawyers who’ve argued against the mandate in court, point out in The Wall Street Journal, House Minority Leader Nancy Pelosi’s first reaction when someone asked about the law’s constitutionality was, “Are you serious?” Since then, a number of the law’s defenders seem to have decided that there really aren’t any serious objections—just people conveniently willing to toe the party line. Leading the pro-mandate condescension parade today is UC Irvine School of Law dean Erwin Chemerinsky in the L.A. Times:

Not surprisingly, the Supreme Court on Monday agreed to decide the constitutionality of the individual mandate in the Affordable Care Act, the healthcare reform package passed in 2010. Under current constitutional law, this should be an easy case to predict — the law is clearly constitutional. But what complicates the decision and makes the result unpredictable is whether the justices will see the issue in terms of precedent or through the partisanship that has so dominated the public debate and most of the court decisions so far.

When the Obama administration formally requested that the Supreme Court hear the case in 2012, I predicted that if any part of the law is struck down, the Obama administration will blame the loss on excessive judicial partisanship. Chemerinsky appears to be doing some of the advance work for this potential talking point.

Hopefully it’s on a strictly volunteer basis, though, because his confidence in the mandate’s obvious legality isn’t very convincing. It’s not just that several judges have already ruled against the mandate; it’s that the mandate raises constitutional questions that don’t have obvious answers—and that the Supreme Court has never clearly decided.

Chemerinsky is right when he says that “the Supreme Court has repeatedly held that under the commerce clause, Congress may regulate economic activity that, taken cumulatively across the country, has a substantial effect on interstate commerce.” The substantial effects doctrine has many problems, but the Supreme Court has relied on it fairly consistently.

Yet as Cherminsky also says, courts weighing the merits of the health insurance mandate must also answer the following question: “Is Congress regulating economic activity?”

This is a good question to ask. But far from making the case for the mandate, it suggests the constitutional arguments against the law should not be quickly dismissed.

At bare minimum, it does not seem obvious that not purchasing health insurance should qualify as economic activity. If doing nothing at all with regard to a privately sold product is nonetheless a form of regulable activity, then what wouldn’t qualify? And if that’s the case, then why bother with asking the question at all? If both activity and inactivty both qualify equally, then it would seem there is not only no difference, but no possibility that the question will ever be answered in the negative. It’s not a test worth having if there is only ever one correct answer. But maybe that’s just my partisan bias speaking.

Chemerisnky’s case is familiar but not terribly reassuring:

[Opponents of the law] contend that people who do not wish to purchase health insurance are inactive and that Congress cannot regulate inactivity. They argue that it is unprecedented for Congress to require an economic transaction and that, if Congress can require purchasing of health insurance, there is no stopping point in terms of what Congress can force people to buy.

The key flaw in this argument is its failure to recognize that literally everyone at some point will use the healthcare system. Children must be vaccinated to attend school. If a person contracts certain communicable diseases, doctors must report them and the government can require treatment. If a person is in a car accident, the ambulance will take him or her to the nearest emergency room and medical care will be provided.

Therefore, even though it appears that some people are abstaining, in fact everyone is already making an "affirmative" active economic choice to purchase health insurance or to self-insure. The Affordable Care Act regulates this economic activity by imposing a penalty on those who choose to self-insure in order to create a system in which all can have access to the healthcare system.

Of course, everyone will consume food, go places, and wear clothes as well. Are mandates requiring the purchase or usage of foods, or cars, or clothing also constitutional?

The government won’t say. Indeed, in defending the mandate, the administration has not been able to define any clear limits on congressional power under its theory of the Constitution’s Commerce Clause. As Circuit Judge Lawrence Silberman pointed out in a ruling upholding ObamaCare’s mandate last week:

The Government concedes the novelty of the mandate and the lack of any doctrinal limiting principles; indeed, at oral argument, the Government could not identify any mandate to purchase a product or service in interstate commerce that would be unconstitutional, at least under the Commerce Clause.

The concession that the provision is novel is important, if only because it indicates that the provision has not previously been put to the test. That alone should deflate the easy certainty of legal defenders like Chemerisnky. To put it another way: Does it really require rank partisanship to be skeptical about the merits of a never-been-tried legal requirement that regulates doing nothing based on the argument that doing nothing is in fact a form of activity?

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  • JoJo Zeke||

    Legal eagles who’ve taken up the task of defending ObamaCare’s individual mandate have made a habit of asserting, in a tone that frequently suggests rolled eyes, that the requirement to purchase health insurance or pay a fine is obviously constitutional, and that only a flagrant partisan could believe otherwise.

    "Eat your peas. OR ELSE."

  • annonymous commenter some guy||

    It was years before I realized that most people say "toe the party line", not "tow the party line". It makes sense either way, though...

    Fist fight or tug of war?

  • robc||

    both are wrong.

    It is actually "tow the party lion".

    Duh.

  • ||

    Nonsense.
    It's a corruption of "To the party, Leon", the words used to invite Trotsky to the site of his murder by ice-pick.

    tsk tsk, no sense of history in kids these days...

    no hugs for thugs,
    Shirley Knott

  • Atlas Slugged||

    Perhaps you need to update the wikipedia entry?

    http://en.wikipedia.org/wiki/Toe_the_line

  • Supreme Generalissimo Fluffy||

    The key flaw in this argument is its failure to recognize that literally everyone at some point will use the healthcare system.

    The key flaw in this counterargument is that health insurance is sold one month at a time.

    I did not have health insurance in 1992.

    I also did not consume any health care in 1992.

    Those months are over and done with and have no impact on my health insurance and health care purchases in 2011.

    There is no "eventually". Each and every month of coverage is a separate and distinct case. If I had no health insurance when I consumed no care and did have health insurance when I consumed care, the health insurance system and I are square.

    You can't tell me that my decision not to have health insurance in 1992 automatically places a burden on the overall health care system when it didn't do so.

  • ||

    More to the point, perhaps, it conflates 'requires (or purchases) insurance' with 'uses the medical system'.
    The two are entirely *not* synonymous.

    no hugs for thugs,
    Shirley Knott

  • ||

    The key flaw in this argument is its failure to recognize that literally everyone at some point will use the healthcare system.

    The key flaw in this counterargument is that health insurance is sold one month at a time.

    If I may, the key flaw in both arguments is the failure to understand that health insurance is the business of funding risk pools. And that, at a societal level, we are all in the risk pool, whether we have insurance or not, whether we use health care or not.

    The nexus between the mandate, health insurance/the funding of risk pools, and every single person in the United States is actually very defensible.

    The problem isn't that someone who doesn't have health insurance has no no "direct or indirect" effect on "interstate commerce". They do. The problem is that an direct and indirect effects on economic activity are allowed to count as interstate commerce.

    IOW, Wickard.

  • ||

    Doing nothing does not have an effect on anything.

    Wickard was not doing nothing, he was growing crops.

  • Atlas Slugged||

    We are all in a societal risk pool to be struck by lightning, contract food poisoning, and stub our toes. Should we be mandated to buy insurance for that? Also, what if I choose to live in the Alaskan wilderness and never seek usage of a hospital? Should I be required to buy insurance because I might?

  • ||

    You conflate health care and the financing thereof.

    I may choose to buy a car for cash, or borrow, or lease…

    Likewise, I may buy healthcare for cash as and when the need arises, or else I may level out the cost for a fixed premium PLUS the cost of my risk aversion. And if I do insure, I insist the cost reflect my own risks, and are not a mere scheme to hide subsidies — healthy to sick and young to old.

    First-dollar health insurance is no more rational than making homeowners’ insurance cover groceries, or insuring oil changes for your car. It exists solely as a wheeze, a way to compensate unions pretax and outside of price controls in the last century.

    That right there is the real reason for Obamacare. We’ve run through all the other ways to hide the looting:
    • Direct tax and spend, from Peter to Paul.
    • High nominal-rates with targeted deduction
    • Borrow to tax the unborn
    • Unfunded mandates
    • Unfunded OASDHI

    Every time their sleight of hand is understood, politicians move on to new and more subtle errors. Obamacare is no exception.

  • ¢||

    The concession that the provision is novel is important, if only because it indicates that the provision has not previously been put to the test.

    This is how we know we're fucked.

    Except for Thomas, the SC is strongly resistant to any legislation-thwarting "novel" interpretation of anything (especially "commerce").

    So if it's being established en route to the SC—and it seems that great rhetorical pains are being taken to make it seem to have been established—that any sort of activity/inactivity-type distinction would be made, not cited, by any negative application of the commerce clause to the insurance mandate...

    7-2.

  • ||

    "It’s not just that several judges have already ruled against the mandate; it’s that the mandate raises constitutional questions that don’t have obvious answers—and that the Supreme Court has never clearly decided."

    Perhaps the SC left it ambiguous because they thought it should remain ambiguous.

    Perhaps they thought that if Congress wanted to risk reelection after doing something like that, they could.

    "Of course, everyone will consume food, go places, and wear clothes as well. Are mandates requiring the purchase or usage of foods, or cars, or clothing also constitutional?"

    Isn't the left saying that if Congress wants to risk making laws that require the purchase of food, cars and clothing--and then run for reelection--then the answer is yes?

  • ||

    P.S. ObamaCare stinks even if it is constitutional.

    I'm sure the constitutionality of doing stupid things is a fascinating exercise to a lot of people, but just for the record, some libertarian needs to pipe up! There are a million things that Congress can do that are both profoundly stupid and perfectly constitutional--most swing voters already know this.

    And when Congress does something as stupid as ObamaCare, the last argument swing voters should hear from libertarians is about whether the stupid law is constitutional.

    Whether the law is stupid--is way more important. And it is a stupid law--a stupid law that hurts people. Whether it's a stupid law that hurts people--and is also perfectly constitutional?

    Is almost beside the point.

  • Apogee||

    Whether it's a stupid law that hurts people--and is also perfectly constitutional?

    Is almost beside the point.

    Wrong. It's immensely profitable for those involved in both writing the law and those influencing the writers of said law.

    Of course the government and its beneficiaries want this power - it's essentially an admission that they can control every aspect of the citizens lives. If the law stands, the citizens are reduced to an unwilling ATM.

    Stupidity never enters the picture.

  • ||

    Except the law is both stupid AND unconstitutional.

    While buying insurance is an economic activity (I don't see how it can be considered interstate cause I can't buy insurance from oklahoma), it is not the economic activity of purchasing health care. People like MNG will argue that even if you don't buy insurance at some point you are going to participate in the health care market are being deliberately obtuse since the inactivity has no bearing on the commerce that takes place: me getting medical attention from a doctor.

  • ||

    you make a good point. while everybody may use healthcare, the mandate is to purchase health insurance. health care and health insurance are not one and the same.

    another point: while everybody may use health care during their life, the mandated health insurance covers more than the minimal amount of health care an individual may need. It isn't 'necessary'
    (as per the Constitution) to make everybody buy more than they need.

  • Billy!||

    "Of course, everyone will consume food, go places, and wear clothes as well. Are mandates requiring the purchase or usage of foods, or cars, or clothing also constitutional?"

    Yes. Duh.

  • ||

    Actually, they are. Under current SCOTUS precedent. Its pretty clear.

    One thing that never ceases to frost me is the assertion that this mandate is somehow novel.

    Its not. It is totally typical. The feds mandate the purchase of hundreds of billions of dollars worth of goods and services.

    The only thing that is different about this mandate is that it applies to everyone. That is a quantitative difference, not a qualitative difference.

  • ||

    Well, it is a qualitative difference insofar as those other mandates involve choices: "If you want to own a trucking company, or grow this kind of crop, you must do X." The insurance mandate is about, "If you're, like, alive, you must do X."

  • ||

    I really don't get why RC is dodging this criticism. I mean that sincerely, I can't imagine he's shilling for Obamacare.

  • adam||

    "The key flaw in this argument is its failure to recognize that literally everyone at some point will use the healthcare system. Children must be vaccinated to attend school. If a person contracts certain communicable diseases, doctors must report them and the government can require treatment."

    I love this one. Because the government requires you to receive certain healthcare (vaccinations for school, treatment for communicable diseases), everyone will use the healthcare system, and therefore the government can for people to buy healthcare insurance. Talk about bootstrapping!

  • ||

    You have to understand that "partisanship" is defined as that which can potentially prevent liberals from being able to enact whatever legislation they wish.

    When the right is against something they are being "partisan". When the left are against something they are being "principled"...

    It closely tracks to the New York Times' opinion of the filibuster which changes depending on whether the democrats have a majority in the Senate or not.

  • rhofulster||

    PRECEDENT!!!!!

    PRECEDENT >>>>>>> CONSTITUTION'S TEXT

  • ||

    The key flaw in this argument is its failure to recognize that literally everyone at some point will use the healthcare system. Children must be vaccinated to attend school. If a person contracts certain communicable diseases, doctors must report them and the government can require treatment. If a person is in a car accident, the ambulance will take him or her to the nearest emergency room and medical care will be provided.

    The last two examples don't involve "virtually everyone" and the first doesn't involve a voluntary entry into commerce. Even the first doesn't apply to immigrants and older people.

  • ||

    That should be "literally everyone".

  • ||

    Irony.

    Most of the people supporting PPACA don't even genuinely believe it is the right solution. They want single payer, but they are willing to support the mandate for largely pragmatic or partisan reasons.

    For example, it's Obama's signature acheivement, so it can't be allowed to fail, etc.

    Irony is that they are accusing Republicans of being partisan by not believing in the laws constitutionality, but their own belief in it's "obvious" constitutionality is largely drive by political motives.

  • ||

    The key flaw in this argument is its failure to recognize that literally everyone at some point will use the healthcare system.

    You mgiht someday need a doctor.
    THEREFORE YOU SHOULD BE FORCED TO PAY FOR THE EQUIVALENT OF 20 MRIs EVERY YEAR.

    We can't have people not paying their fair share.
    SO THEY SHOULD BE REQUIRED TO SPEND MONEY LIKE A TERMINAL CENCER PATIENT ON CRACK.

    This is the logic you need to follow in order to get healthy people spending enough money to subsidize all the sick people they will actually be paying for.

  • Bob_R||

    The "of course it's constitutional" argument simply refers to the fact that the post New Deal commerce clause precedents give congress a blank check for any type of tyranny that can be passed by a popular majority. Thomas is the only one of the nine with the balls to say that the whole set of precedents should be scrapped.

  • ||

    The key flaw in this argument is its failure to recognize that literally everyone at some point will use the healthcare system. Children must be vaccinated to attend school. If a person contracts certain communicable diseases, doctors must report them and the government can require treatment. If a person is in a car accident, the ambulance will take him or her to the nearest emergency room and medical care will be provided.

    Health care is NOT Health insurance. So he is patently wrong that the mandate of purchasing insurance is constitutional.

    What precedent WOULD allow is congress saying everyone had to go to the doctor twice a year and get a full battery of tests once a year. It would still be bullshit, but that's the economic activity that's actually being engaged in.

  • ||

    What if the IPAB decided that, in order to improve efficiency and more easily track expenses, doctors would no longer be able to accept cash, but could only accept payment from authorized insurance companies?

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