Obamacare and the Commerce Clause

Linda Greenhouse writes on legal matters for the New York Times. Yesterday, she released a column in which she concluded that the constitutional arguments raised against the individual mandate in Obamacare had no merit. In Greenhouse's view, those who argue to the contrary are the equivalent of folks who believe in intelligent design or who argue against the validity of man-made global warming.

The truth, however, is something quite different from that presented by Greenhouse. Let me start by explaining that I am not analyzing this question from a political standpoint; rather, I will limit this review to just a legal question. Under normal constitutional analysis, is Obamacare's individual mandate constitutional?

Any review on this topic has to begin with the Constitution itself. Under Article I, Section 8, "Congress shall have the power ...To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". The individual mandate in Obamacare falls in the second of those three areas, interstate commerce.

It is a basic tenet of American constitutional intrepretation that Congress does not have unlimited power to do as it pleases in all cases. Indeed, the Tenth Amendment to the Constitution states: "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, unless the federal government (Congress) is given a power by the constitution, that power remains either with the states or the people.

Under the individual mandate in Obamacare, congress has ordered each citizen to purchase health insurance. Failure to comply results in the imposition of a fine on the unisured citizen. This exercise of power is said by the Obama administration to be allowed by the commerce clause; it is purportedly regulation of commerce among the states. This sets up the basic dispute.

Opponents argue that congress is not regulating commerce with the mandate. After all, the people covered by the mandate are not participating in commerce; they have chose not to buy insurance. Obamacare is requiring these people to enter into commerce to buy insurance. The supporters of the law say that health care comprises about one-sixth of the national economy and that individuals -- whether or not insured -- will necessarily have to obtain health care at some point in their life. They argue that Congress is just regulating those who will inevitably be engaged in commerce and who, when considered as a group, have a substantial impact on the national economy.

In a simplistic view, then, the question to be determined is what constitutes commerce for the purpose of the constitution. If non-purchase of insurance is commerce, then Obamacare is constitutional. If non-purchase is not commerce, then Obamacare fails.

So how does the court decide this question? First, the Supreme Court will look to its past decisions on point. Here, there is little dispute that there are no decisions that are directly on point; this is a case without precedent. Indeed, in the brief filed with the Court by the opponents of the law, the fact that this situation is unprecedented is repeatedly pointed out. In her article, Linda Greenhouse feels compelled to point out that the law's unprecedented nature does not make it constitution or unconstitutional. Of course, Greenhouse misses the point. The unprecedented nature of Obamacare's mandate does not require, by itself, that the law be determined to be unconstitutional. It does tell the court two things however: 1)The court is going to have to look at this situation by reasoning it through rather than finding a prior decision which is on point. 2)Since Congress has gone through two and a quarter centuries without ever trying to establish something like the healthcare mandate, it is an indication that thousands of congressmen and senators did not think that the constitution gave them the power to do so.

So the court is going to have to review this statute looking at the impact of the law and seeing if it comports with the constitutional requirement of limits on government but with power to regulate commerce. Let's see how this plays out. The law's proponents say that two factors allow Congress to issue the mandate: the uninsured will have to participate in the healthcare field at some point in the future, and healthcare is a big part of the American economy. Under this test, however, many other possible laws would be constitutional.

Here is a good example of a law which would be constitutional under the theory of those supporting Obamacare: Congress passes a law that requires Americans to limit themselves to one child only (like the Chinese). Anyone who is parent to more than one living child is to be fined for violation of that law. This clearly meets the test of the law's proponents. All of the children born to Americans will inevitably participate in the healthcare field at some point. They are no different than the uninsured in that regard. And healthcare and education together make up an enormous chunk of America's economy.

So does anyone think that Congress was given the right to regulate the number of children each person is allowed under the interstate commerce clause? Other than harsh partisans, no one would come to that conclusion. But that is the necessary result of the argument put forward by the government in support of Obamacare.

On the whole, it is my opinion that Obamacare will fail and the mandate will be declared unconstitutional.

It is important to note that the government is also arguing that the mandate is actually a tax which can be passed under the government's taxing powers. This argument has been rejected repeatedly since the supporters of Obamacare argues over and over again that the mandate was not a tax back when passage was being debated. I doubt the Supreme Court will change this view.