Tuesday, February 02, 2010

State Anti-Mandates

By Mike Dorf

An AP wire story that reports on a movement in state legislatures to forbid any sort of "individual mandate" to buy health insurance, even one coming from a federal statute.  The story (accurately) quotes me as follows: 
"They are merely symbolic gestures," said Michael Dorf, a constitutional law professor at Cornell University. "If this Congress were to pass an individual mandate, and if it is constitutional - which I believe it is - the express rule under the supremacy clause (of the U.S. Constitution) is that the federal law prevails."
In a display of typical two-sides-to-every-issue false equivalence, the story introduces this quotation by noting only that "it's questionable that such . . . measures could shield state residents from a federal health insurance requirement."  Questionable?  I'll say.  Much in the same way that it's questionable that the Flintstones accurately portrayed early human life in all of its details. You know, what with the "experts" questioning the co-existence of humans and dinosaurs.  Because, after all, other experts don't raise those questions.

Thus, at the risk of stating the obvious, I thought I'd reproduce my reasoning.  Here's the core of a fairly typical email I received:
Why do you believe that a Federal mandate to force individuals to buy private insurance is constitutional?  Furthermore, why do you believe that States who choose to exercise their 10th Amendment rights are only going through "symbolic gestures"?
And my reply:
If Congress has the power under Article I to enact an individual mandate, then it is valid law that, under the Supremacy Clause of Article VI, displaces any contrary state laws: "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."  The Tenth Amendment reserves to the states only those powers that are not given to the federal government: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

So the only way that the state laws could be enforceable would be if Congress lacked the power to adopt the individual mandate.  However, as I argue here, Congress has the affirmative power.  Nor is the libertarian objection a constitutional obstacle, as I argue here
None of this is to say that the individual mandate or any particular health care reform bill is wise policy.  But the constitutional objections being raised are extraordinarily weak under existing precedents.
To all of that, I would simply add that discarding the modern doctrines on which my analysis is based--as was suggested to me by another emailer and has been sometimes advocated by Justice Thomas (but by no other Justice in over 70 years)--would be extraordinarily disruptive of the national economy.  There was a time, not to long ago, when stability was especially valued by conservatives.  Where have you gone, Dwight D. Eisenhower?  Our nation turns its lonely eyes to you.

Finally, happy Groundhog Day to all, especially the robotic groundhog being proposed by the counter-productive, self-parodying PR gurus at PETA.  (In case you're wondering, my complaint isn't that PETA is too radical; on the contrary.)


egarber said...

I think a lot of folks, to the extent they know the constitution at all, either 1) read it as if we're at day one, with no precedents on the books (ironically, these tend to be conservatives who lash out about "activism"), or 2) selectively read what they want into previous rulings.

I've run into both in my discussions with friends. In one case, when I cited M v Maryland as a foundation for implied powers over the economy, a guy replied, "nationalizing one six of the economy isn't a means to a proper end."

The fallacy of "nationalization" aside in the current healthcare debate, I asked if he really thinks that kind of arbitrary edict could form the basis of any disciplined legal opinion today? And then I said, "on the contrary, that healthcare is such a large segment of the economy cuts in favor of commerce power over it, because its size makes it unavoidably interstate in character."

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