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.