Tuesday, September 29, 2009

Is the Constitutional Law of Health Care Reform the New Global Warming?

By Mike Dorf

Until very recently, even mainstream news organizations felt a misguided sense of obligation, when covering global warming, to present the issue as though there was a real debate about whether human beings have made a substantial contribution to the phenomenon.  Crackpot skeptics and industry flacks were given equal or nearly equal time with scientists speaking for the overwhelming consensus.  Thankfully, that approach has largely faded with respect to global warming.

But the root cause of the problem remains and is worse than ever: Journalists labor under a professional obligation to provide "balance" in their stories but they are generalists who typically lack the expertise necessary to evaluate the evidence for the positions taken by people on different sides of any question.  Hence they simply quote people expressing a variety of views (and often fall into the trap of framing questions as though there are exactly two sides).  This problem has been exacerbated by the declining revenues of newspapers: Forced to lay off staff, the papers give each remaining reporter a larger beat to cover, meaning that the typical, well-intentioned and quite smart reporter increasingly finds herself writing about unfamiliar matters.

Perhaps a case in point is this article by Monica Davey in the NY Times.  The piece documents a recent trend of states passing laws or state constitutional provisions forbidding a legal mandate that everyone buy health insurance.  Such a mandate--or its equivalent--is an essential piece of any law that would prevent health insurers from rejecting insureds with pre-existing conditions: Without the mandate, people willing to forego routine health care (as many young, healthy people are), can wait until they need expensive care, and then sign up for health insurance.  This is patient-side adverse selection, and health insurers are right to worry about it.  Universal coverage (through a mandate or otherwise) is the solution.  And that is in fact why some states are trying to outlaw the universal mandate: They know that doing so will kill health-care reform.

But here's the thing: The state laws can only have a symbolic effect on a federal mandate.  Under the federal Constitution's Supremacy Clause, a valid federal law overrides a state law or state constitutional provision.  And a federal requirement that everyone buy health insurance would clearly be a valid exercise of Congress's power to regulate interstate commerce.  How do we know?  Because of numerous Supreme Court decisions, including the 6-3 decision in 2005, in Gonzales v. Raich, that Congress can forbid, under its Commerce Clause power, the intra-state cultivation and distribution of marijuana, even in the face of a California statute making those activities legal when licensed for medical purposes. Regulation of the interstate market in health care is simply a no-brainer under modern Commerce Clause precedents.

The Times article quotes two law professors who agree with my analysis, but it also dutifully quotes supporters of the state law measures, even though the arguments they make would earn an "F" on a constitutional law exam.  The reader who lacks a serious background in this area would come away thinking that this is a legitimate debate, just as one might have come away from older articles on global warming thinking that they report a serious debate.

The best that could be said for the view that the state laws could block a federal universal mandate is that Supreme Court cases should not define the meaning of the Constitution for everyone.  The Court has upheld nearly everything that Congress has done under the rubric of the Commerce Clause but, following an argument first articulated by Thomas Jefferson and lately revived by Justice Clarence Thomas, one might think that the Court got it wrong.  That's fair enough.  But there's no chance that the rest of the Justices are about to change their minds, and absent such a change, litigation under the state laws cannot block or even substantially delay a federal mandate.  A truly balanced story would have made crystal clear that whatever value these laws have as political statements, they rest on what the courts will regard as a crackpot legal theory.


egarber said...

Hey Mike,

I'm wondering if there's any kind of meaningful difference between a law that prohibits certain behavior as an excercise of commerce power, vs. one that *compels* individuals to do something (instead of nothing).

My first thought was that everybody has to fill out tax forms by law, so there you go -- but that's really the general welfare / tax clause, no?

So I'm trying to think of an example where individuals, under commerce clause power, must do something by federal law, but not as an employee of a company (where abiding by civil rights laws could be an example).

Then again, it might not be a meaningful distinction.

Go Braves...

Michael C. Dorf said...

The act/omission distinction is not significant in this context but it is, under S Ct doctrine, in a related context: The Supreme Court has held that states themselves may not be directly compelled to legislate or execute a federal program, (see NY v. US; Printz v. US) but may be forbidden from taking certain actions (see Reno v. Condon).

Bob Hockett said...

Great post, Mike, many thanks.

One thing that's remarkable about the attempt by some to revive the Jeffersonian argument, it seems to me, is that it amounts to no less than an attempt to 'hit the reset button' (sorry to use that now hackneyed expression!) on nearly all of our constitutional history since the time of the first Washington administration!

What do I mean? Well, during his first administration, Washington asked his two most influential cabinet members, Alexander Hamilton and Thomas Jefferson, to supply him with memoranda directed to the question of a prospective national bank's constitutionality. Jefferson argued for a crabbed understanding of "necessary" per the "necessary and proper" clause -- an understanding that effectively amounted to an argument that anytime there is more than one way to do something, it is not permissible to do it. (No way is, strictly speaking, "necessary" if it is not the only way.)

Hamilton absolutely smoked Jefferson with a more commonsensical reading of "necessary" -- the "let the end be legitimate, and ..." reading. That reading was of course anticipated in Hamilton's Federalist 78, and not long afterward was constitutionalized in an opinion written by a devotee of Hamilton's -- Chief Justice Marshall, in the foundational McCulloch opinion.

Anti-federalists of course hated (and envied) Hamilton, as well as Marshall, and they've been smarting over the federalizing of the nation ever since 1787. It's remarkable to see that they're still at it -- and that they still have a mole on the SCt in the person of Thomas.

On egarber's question, Justices like O'Connor, who penned the NY v. US decision, might have been symptathetic to the anti-federalist view too, given the odd sort of state-fetishism that seems to be at work in the complaint over fed "commandeering" of states' enforcement apparati as an affront to the "dignity" of states. But it's happily harder to see how such folk would find traction for the act/omission distinction where human individuals are concerned, since laws routinely require actions as often as they prohibit actions.

Thanks again,

Bob H

egarber said...

I think I read that there might be a mechanism whereby the states would enforce the mandates as a condition of receiving federal healthcare money. If so, the localized efforts could backfire -- because the radicals would cause their states to lose funds and competitive footing in the battle to attract business, etc.

Tam Ho said...

Mike, no doubt you are right about the ignorance of good reporters contributing to this problem, but I don't think that is the main problem. There seems to be a widespread affinity by thinking people to placate the crazy people who currently make up roughly 50% of the American population.

Hence the liberal bashing that a wildly popular Democratic President still feels like he needs to do, even though he is succeeding a Republican who is the most unpopular and widely considered to be the worst president of all time. I mean, if there were any other time when Obama could really preach liberalism, it would be now, but he still bashes his base, as Neil noted recently.

Hence the fact that Joe Biden even had to have a "debate" against Sarah Palin where he couldn't just respond with, "Are you serious?" to every single one of her answers; or how reporters couldn't even ask her any tough questions or comment on how inadequate she truly was and is.

It's a sign of the times, a time when people want to teach creationism as a legitimate metaphysical alternative to the theory of evolution; when a major party VP candidate can't even name a single newspaper, and believes that dinosaurs were around 4,000 years ago; when people like Glenn Beck, Bill O'Reilly, and Rush Limbaugh have thriving careers; when it is literally impossible to have any sort of remotely intelligent discussion on tax policy; when being "elite" or intellectual or even thoughtful is a bad thing.

George W. Bush proved that you can become the leader of the free world by pandering to the inmates, so even though their 8-year stint at running the asylum is thankfully over for now, we're going to be tiptoeing around for a generation out of fear that the crazies will be mobilized once again as they were in 2000 and 2004.

michael a. livingston said...

But there is a political significance to States attempting to defy the Federal Government even if the legal outcome is clear. It is a little bit ironic actually. Much hay was made, not just ironically, about Obama's Lincolnesque qualities: tall and lanky, a very good lawyer, worked in Springfield, and so forth. In our enthusiasm we forgot that the first response to Lincoln's Presidency was for 11 states to leave the Union.

Unknown said...

As usual I am late to post a comment, and consequently suspect and fear that my comment will go unread.

I take issue with an earlier comment concerning just how decisive was Hamilton’s victory over Jefferson, notwithstanding its persuasiveness to President Washington at the establishment of the first bank, or to Chief Justice Marshall in his famous adjudication concerning the second. While I believe that, as a matter of policy, it were better that the Hamiltonian position should prevail, as a matter of logic it does not strike me that the outcome was somehow inevitable. It was perhaps too cabined a reading of “ necessary” to suggest that it be limited to a without-which-not denotation. But again, this is a matter policy only, for there is no reason (so far as I can see) that the latter reading of the term offends normal lexical usage conventions.

Moving, then, from the commenter’s point to the poster’s, I take issue also with the suggestion that the position of opponents doesn’t warrant serious coverage or consideration. Here again I think the poster is right as a matter of policy and—I’ll go a step further—right as a matter of fidelity to constitutional precedent. However, what prompts me to raise objection is that I do not think the constitutional matter to be quite as clear as the poster’s tone would suggest; I think it a somewhat closer call.

The related histories of Commerce power and Necessary and Proper power are well analyzed, and I think I do no violence to the ordinary and mainstream readings of those histories to say that they have afforded the Court an opportunity to be, well, opportunistic in the line of precedent selected to achieve a particular result. I don’t mean here to impugn the integrity of the justices in their selection—only to say that a certain Hartian “open texture” has imbued not only the constitutional text to be construed in this area, but the prior precedents construing such text.

Consider, for instance, the cited case of Raich. A (non-ideologically) fractured bench upheld the federal power in that case on Wickard grounds, but might as easily, it seems, have achieved the opposite result citing Lopez or Morrison.

For me, the thumb on the proverbial scale would have been to invoke the Carolene Products footnote-four values and, on that basis, I would have decided Raich differently. Granted, this isn’t a true footnote four situation, but the interests of the individuals involved seemed terribly personal, as opposed to commercial, as contrasted with the Wickard situation.

I think I would come down on the opposite side in the case of a health-care bill. I would, in the end, agree with Professor Dorf. But I would not be so quick to dismiss the notion of a constitutional limit on the federal power where, in stark contrast with the dominant situation that came before the Court in the New Deal years and especially the Warren years, the state proposes to extent greater—not less—personal liberty to individuals than does the federal law. This is a position that I think is too often overlooked given the (understandable) desire to affirm and ratify the post-Lochner and especially Warren Court decisions that did so much to advance individual liberty against state-government impingement. Again, I don't think the health-care legislation presents this problem, but it is just something to keep in mind.

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