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The High Court's Brisk Constitutional: Health Reform

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If ever there was a get-out-of-town case, this one is it: Department of Health and Human Services v. Florida, the case that challenges the constitutionality of President Obama's health care reform law. The justices can be expected to make a quick dash for the exits once they announce their decision, most likely at the end of the Court's term in late June.

The political ramifications of this high-stakes dispute have already been well explored, but not so the constitutional dimensions. The current calm before this Florida storm erupts in March, when the case is scheduled for arguments, offers a good opportunity to assess the legal terrain.

The primary challenge to the Patient Protection and Affordable Care Act concerns the individual mandate provision, which requires nearly every individual to obtain one of several possible forms of government-approved health insurance. Opponents of the mandate argue that it exceeds Congress' power under the Commerce Clause because it forces people to engage in a commercial transaction and purchase something they may not want to buy.

This challenge to the statute faces a steep climb against the Supreme Court's modern Commerce Clause jurisprudence. The Commerce Clause states in relevant part that "Congress shall have power...to regulate commerce...among the several states." Ever since the New Deal Revolution of the 1940s, the Court has given the words a broad and expansive definition.

The decisions have repeatedly used language that emphasizes the importance of treating the commerce power pragmatically. "Congress is not bound by technical legal conceptions," the Court declared in one of its major cases. "Commerce itself is an intensely practical matter. To deal with it effectively, Congress must be able to act in terms of economic and financial realities."

The economic and financial realities of health care are impressive. Overall, health care spending in America exceeds $2.5 trillion dollars a year. Some $43 billion of that sum is attributable to the 50 million uninsured Americans whose medical bills to providers go unpaid, and which providers finance by imposing higher fees on those who can pay -- typically insurance companies who pass on the added costs to their customers. This massive cost-shifting is estimated, on average, to increase family insurance premiums by about $1,000 a year.

By its words, the Commerce Clause clearly authorizes Congress to regulate this vast interstate market to address its deficiencies -- and by Supreme Court interpretation, the Clause allows Congress to do so practically, realistically and free of legal technicalities. So how deeply may the arm of Congressional regulation actually reach? Very deeply.

In a string of major decisions, the Supreme Court has consistently held that the Commerce Clause empowers Congress to regulate all economic activities -- including purely local or in-state economic activities -- which exert a substantial economic effect on interstate commerce. The Court has said that Congress may even regulate a trivial local economic activity, if many other economic actors around the country also engage in the same activity and thus together exert a substantial economic effect on interstate commerce.

Regulation of the purchase of medical insurance by individuals would seem to fit these Supreme Court parameters. Opponents of the health care reform law challenge the fit, however. They argue that the Supreme Court parameters address only economic activity, and people who do not purchase insurance are economically inactive. The Commerce Clause does not empower Congress to forcibly push people into the stream of commerce, they maintain.

Under modern Commerce Clause principles, the Court could and should readily conclude that the opponents' claim amounts to little more than a distinction without a difference. People who do not buy insurance essentially decide to self-insure and use their own resources -- an economic activity -- to address whatever may be their medical needs, from a simple Band-Aid to major surgery. The use of personal resources -- whether small, great, or more likely insufficient -- by millions of self-insured Americans substantially affects the interstate health care market and could be easily viewed as a basis for upholding Congressional authority to regulate the market through the health care reform law.

The fact that any individual's medical needs might not arise until well into the future would not be likely to defeat the Congressional power to insist on a health insurance mandate now. The Court has said on numerous occasions that the powers of Congress such as the Commerce Clause are "plenary," and that Congress may adopt any means that are "reasonably adapted" to achieve the ends it seeks under its constitutionally permitted powers.

Opponents of the health care reform law also argue an alternate position. They argue that the statute's mandate oversteps Congressional power because it directs people to engage in the specific commercial activity of buying a specific good or service. The Supreme Court has never explicitly ruled that the Commerce Clause give Congress the direct power to issue such an order. However, the Court's precedents have achieved virtually the same result by approaching the matter using a different logic.

In a landmark 1941 case, United States v. Darby, the Supreme Court ruled that Congress possesses the power to prevent an employer from engaging in the interstate commercial sale of goods unless the employer purchases a specific kind of service -- namely, a labor force comprised of workers who by law are paid according to minimum wage requirements.

In other words, the justices approved Congress' power to impose conditions on the choices and actions of economic actors who utilize or function in interstate commerce. Using this sort of reasoning, the present Court could easily decide that Congress has the power to prevent individuals from engaging in the interstate commercial purchase of health care, unless they buy a specific kind of good -- namely, statutorily sufficient health insurance.

This is not a strange concept. Consumers routinely must forgo purchase of certain goods and services unless they also agree to buy certain other goods and services. Auto buyers, for example, if they wish to purchase a vehicle, must purchase along with their car a variety of federally mandated safety and anti-pollution devices.

The broad principles of the Commerce Clause articulated by the Court have thus empowered Congress to regulate many commercial relations. Beyond the world of autos, Congress has passed numerous laws establishing product safety standards, work safety standard, and environmental standards across the full range of American economic activity. Additionally, Congress has used commercial relations as a basis for establishing, as a part of or consequence of those relations, many important rights -- among them, labor rights, civil rights against discrimination, and civil and criminal protections against all sorts of violent or predatory behaviors.

The breadth of Congressional activity under the Commerce Clause is the reason why the constitutional stakes are so high in the health care reform case. There are many good reasons to believe the justices will and should stay the course in this case. The Court's broad Commerce Clause pronouncements on matters of economic regulation have enjoyed broad support across the entire ideological spectrum on the high bench -- from the liberalism of Ruth Bader Ginsburg to the conservatism of Antonin Scalia.

Generations of justices since the 1940s have realized that previous attempts to conceptually dice up the national economy into smaller local pieces, in order to remove commercial relations from the reach of Congress' interstate commerce power, produced no workable or logical standards. Additionally, the past attempts upheld some of the worst economic and commercial abuses -- from sweatshop working conditions, to plunderous monopolistic practices, to rampant discrimination.

Over the years, justices of all ideological stripes have concluded that regulation of the national economy is a political decision, to be determined by the people's representatives in Congress. Chipping away at Congress' constitutional power to regulate the national economy reduces the capacity of the American people to decide freely, openly and democratically their national economic destiny.

Still despite the clear weight of precedent, the current members of the Supreme Court have encouraged speculation about what they will do. They have taken up the health care reform case at their first opportunity, and they have set aside an extraordinary three days of arguments for the case, indicating that whatever they decide will be a major constitutional declaration. Adding to the suspense is the fact that four new justices have been appointed to the high bench since the Court's last major Commerce Clause decision.

The implications of the case are momentous. The justices could decide to keep things as they are, and leave the entire range of national economic decisions in the hands of the people and their representatives in Congress -- an appropriate course of action in a democracy. Alternatively, they could strip Congress of some of its authority and thereby invite a whole new set of lawsuits challenging, beyond health care, other mandates, obligations, rights and protections that Congress has enacted pursuant to the Commerce Clause, and upon which citizens have come to rely.

Either way, the justices have set themselves up for a major get-out-of-town decision.

Alain L. Sanders is an associate professor of political science and teaches American politics and constitutional law at Saint Peter's College in New Jersey.