The Constitution as Hail Mary

By Bob Hockett

With some recognizable form of the recent House and Senate health insurance bills now all but set to be passed into law by Congressional action and Presidential signing later this month, it was perhaps all but inevitable that one or two naysayers might look for some reason to hope the Supreme Court might nix the effort. But one might nevertheless have hoped for something a bit more serious that what three well known public figures have offered in this past weekend's Wall Street Journal in this vein.

In the issue in question, Orrin Hatch, Kenneth Blackwell, and Kenneth Klukowski (hereinafter 'HBK') proffer three surprisingly frivolous arguments purporting to establish that what they call 'the Health-Care Bills' are 'unconstitutional.' Since I have been writing, like Neil and Mike, with some regularity about the health insurance reform effort, I am perhaps naturally prompted to comment on each of the three arguments.  Happily it requires little time.

HBK argue that '[f]irst, the Constitution does not give Congress the power to require that Americans purchase health insurance.' Really?  How about the taxing power? Well, according to HBK, 'Congress's powers to tax and spend do not apply because the mandate neither taxes nor spends.'

Now as DoL readers know, Mike has already addressed this matter quite thoroughly in a FindLaw column, so I can be very brief here. The short reply to HBK is this:  On what theory is the penalty which the IRS is empowered by the legislation to assess against those who do not insure not a tax?

Here is how readily the SG can defend the mandate in any court: 'Your Honors, the legislation imposes a new tax upon those who add to the cost of health insurance by not participating in some insurance pool.  The latter is a cost which the government must otherwise foot in subsidizing coverage, as it now does via the legislation, to 30 million of our erstwhile 46 million uninsured. Those who take measures to avoid imposing these costs, by participating in insurance pools, are exempted from the tax.' What, one wonders, do HBK say to this?

Next, HBK report that '[a] second constitutional defect of the Reid bill passed in the Senate involves the deals he cut to secure the votes of individual senators.' The constitutional defect here, they go on, is that 'selective spending targeted at certain states runs afoul of the general welfare clause. The welfare it serves is instead very specific...'

One wonders, upon reading this charge, what legislation would not run afoul of the Constitution by HBK's lights. Since literally all, or at the very least virtually all, legislation is arrived at through 'horse trading' and 'logrolling,' involving special favors for some legislators' constituents in return for those legislators' votes in favor of sponsoring legislators' bills, one must conclude that HBK think literally all, or at the very least virtually all, of the U.S. Code to be unconstitutional.

The third and final 'constitutional defect in this ObamaCare legislation,' HBK complain, 'is its command that states establish such things as benefit exchanges, which will require state legislation and regulations.' Citing New York v. United States and Printz v. United States -- the anti-'commandeering' decisions of the 1990s -- HBK conclude that this 'command' runs afoul of our federalism as interpreted by the Rehnquist Court.

The most dramatic problem with this argument is that its own refutation is supplied by HBK themselves, who acknowledge that the legislation provides that the Secretary of Health and Human Services is to establish exchanges where states refrain from doing so themselves. That of course means that there is no 'command' to states here at all, let alone any 'commandeering.' There is, rather, an option (a declinable one) expressly made available to the states to take for themselves the role of rendering insurance more readily available to their citizens, should they so choose, instead of simply vesting that role categorically in HHS, which HBK do not deny could legitimately be done.

What, then, are we to conclude from the puzzling exercise in constitutional argumentation that is HBK's piece in the Wall Street Journal this weekend? Well, initially it is at least somewhat tempting to draw an analogy between these attempted constitutional arguments on the one hand and some of the arguments in favor of torture's putative legality made in the Bush White House on the other.
It's also initially tempting to suggest that these arguments are not meant to be serious constitutional arguments at all.  They might instead be meant simply to 'score points' by casting further clouds of suspicion, in the eyes of the constitutionally ignorant, upon the legitimacy of a presidency and of legislation to which these gents actually object on no more than partisan political grounds.
But I shall resist these temptations and attribute to HBK only the best of intentions. And that, happily, leaves us with the much more benign conclusion that HBK's only real fault is an apparent lack of even the most rudimentary understanding of the document one of them has pledged to defend and protect and all three of them have just frivolously invoked -- the anything but frivolous U.S. Constitution.  Here's to a more serious veneration of our founding document by our public servants in future.