Yesterday, U.S. District Court Judge Roger Vinson ruled that the Patient Protection and Affordable Care Act is unconstitutional. The organization I run, Constitutional Accountability Center, will be dissecting this monstrously wrong opinion in detail over the days and weeks ahead.
For now, I wanted to address a key point made by Judge Vinson, Judge Henry Hudson (who ruled against the ACA in a separate case in December) and some Republican state Attorneys General, who talk about a slippery slope from the Affordable Care Act to a federal law that somehow requires people to eat broccoli or other vegetables.
I have a question for this "broccoli" argument: "Where's the beef?" While we should all heed our mother's advice to eat our vegetables, the important task at hand is to look at the text and history of the U.S. Constitution, and then compare these sources to the facts confronting Congress in passing the health care reform law.
As we saw in yesterday's decision, legal challenges to the Affordable Care Act distill primarily into an attack on its individual responsibility provision (also called the "individual mandate"), which requires Americans to maintain a minimum level of health insurance coverage or pay a tax penalty.
If Congress can enact the individual responsibility provision, Judge Vinson wrote, "Congress could require that people buy and consume broccoli at regular intervals...." And last month, Ohio Attorney General Mike DeWine told FOX News, "if [Congress has] the power in the Commerce Clause to do that, they could decide it is in the national interest for our health for everybody to exercise 45 minutes a day or eat spinach every day."
The problem with this frivolous "broccoli" contention is that it has nothing to do with the Constitution. Those who use it say that the decision to obtain health insurance is a "non-economic" personal choice (like the one to choose steak over broccoli) and therefore, they say, the federal government lacks the authority to require individuals to obtain health care coverage.
Except the decision not to buy health insurance is a profoundly economic one that has significant financial consequences for everyone else. When the uninsured fall ill or get into an accident, they go to the emergency room, where they run up medical bills they often cannot afford to pay without insurance. But someone pays: hospitals, local governments, and the American people -- who not only foot those bills as taxpayers but also end up paying higher premiums of their own because the uninsured have opted out of the national risk pool. Congress found that these uninsured costs totaled about $43 billion in 2008.
Such a cost figure makes clear that the individual responsibility provision falls squarely within Congress's authority under the Constitution's Commerce Clause under Article 1, Section 8 (pdf), including actions -- such as the decision not to buy health insurance -- that substantially affect interstate commerce.
Furthermore, Article 1, Section 8 of the Constitution also grants Congress the power to pass laws that are "necessary and proper for carrying into Execution" other powers granted to it. The individual responsibility provision is a quintessential example of such a law. The Affordable Care Act is designed to make health care coverage affordable to all Americans and to prohibit certain insurance practices, such as denying coverage to individuals with pre-existing conditions. If Americans can go uninsured until they get sick and then impose these costs on those who already have health insurance policies, the ban on pre-existing conditions will be prohibitively expensive and the cost of insurance will increase across the board.
The individual responsibility provision, in other words, addresses a $43 billion annual national problem and is an essential component of the entire Affordable Care Act. Neither of these things can be said about our moms' advice to eat broccoli.
So as we debate the constitutionality of health care reform going forward, by all means, let's remember what mom said about eating our vegetables. But let's also remember that this sage advice has nothing to do with the constitutionality of the Affordable Care Act.
Additional resources on why health care reform is constitutional:
CAC's "friend of the court" brief - representing 78 state legislators from 27 states - explaining why the law is constitutional.
The States, Health Care Reform, and the Constitution
Strange Brew: The Tea Party's Errant Constitutional Attacks on Health Care Reform
Redefining Federalism: Listening to the States in Shaping "Our Federalism"
Follow Doug Kendall on Twitter: www.twitter.com/myconstitution
David Katz, M.D.: Is the Affordable Care Act Really Unconstitutional?
If the national government can require an individual to purchase commercial health insurance because of its long-term indirect lack of impact on interstate commerce, then the national government can require an individual to purchase commercial broccoli because of its long-term indirect lack of impact on interstate commerce. This principle is incompatible with the text *or* the history of the Constitution. As John Marshall wrote in Marbury v. Madison:
"This doctrine would subvert the very foundation of all written Constitutions.... It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.
"That it thus reduces to nothing what we have deemed the greatest improvement on political institutions -- a written Constitution, would of itself be sufficient, in America where written Constitutions have been viewed with so much reverence, for rejecting the construction."
Now, say what you want about that solution, but the right wing didn't "force" the individual mandate on anyone. The left demanded a big-government solution, they couldn't get the biggest-government solution that they wanted, and they voted instead for the cr@ppy slightly-smaller-government solution that absolutely everyone, left and right, hates.
The good news is, the insurance mandate is almost certainly unconstitutional, so we will get the chance to refight this fight, you and I, a few years from now. I think single-payer's a terrible idea, and no doubt you think the same of the right's market-based solutions, but I think we can both agree that BOTH solutions would be better than the steamer the PPACA has stuck us with.
You liberals can stop your smug laughing... this will be a very close call and could very well ultimatley sink Obamacare
Learn: http://www.acslaw.org/taxonomy/term/2269
"Judge Vinson's apparent excision of the Necessary and Proper Clause appears different from, but just as untethered to constitutional text and interpretive history, as the recent decision of Judge Henry Hudson of the Eastern District of Virginia, to invalidate the ACA's mandatory insurance provision. Hudson held that, if (as health reform opponents assert) decisions not to purchase health insurance constitute "inactivity" not covered by the Constitution's Commerce Clause, then the Necessary and Proper Clause does not give Congress power to regulate such decisions. This, wrote George Washington Law professor Orin Kerr, is "incorrect," and renders the Necessary and Proper Clause "a nullity." Professor Kerr noted, "The point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of Article I powers to achieve the ends listed in Article I." He added that "not even the most vociferous critics of the mandate have suggested that the Necessary and Proper Clause can be read this way."
You say the broccoli argument doesn't apply, but by your own argument, it certainly does. You say that "interstate commerce" applies if there are profound economic consequences that impact everyone else. Would a society of obese people have considerable health care expenses that impact everyone? Of course it would. If we attempt to make this justification, people who do not eat healthy will adversely impact commerce for others; therefore, dietary controls and mandatory gym memberships are suddenly in the interest of reducing everyone's economic burden.
I cite the 10th Amendment for you, which states that powers not specifically enumerated to the federal government, such as the power to mandate the private purchase of a good or service, falls under the authority of the sovereign states. In other words, an individual mandate can be done at the state level, but not federal. The law is unconstitutional.
What is being regulated most certainly IS a choice. That is the choice to have insurance or not.
The rest of your argument is bunk.
Not exactly the whole story is that? You failed to outline the "the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
I find the first line of Article 1 section 8 to be the most important:
"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;"
http://www.usconstitution.net/xconst_A1Sec8.html
Are these insurance premiums going to be uniform throughout the United States? Or just the fines?
That is the problem with YOUR argument, not theirs because this is NOT their argument. It is an example of why the constitution OF COURSE does not give the federal government the blanket power to do ANYTHING that is "for our own good".
The federal government has the power to tax, spend, and regulate. This is none of the above. This is compelling commerce.
We NEEDED real health care reform. Obama killed that and went with corporate welfare instead. Today, we STILL need real health care reform but we're going to lose a year or two throwing this law out before we can even consider moving on towards dealing with the real needs of the nation.
Now if they tried to, say, pass a law forcing all homeless people to BUY a home THEN it would be unconstitutional for the same reasons as the health care law.
There are REAL problems with this law. You don't need to make any more up.
Take a pill and go back to bed. This isn't Stalinist Russia or Papa Doc's Haiti.
If Americans sit on their couches and swill beer and eat sausage all day, and smoke five packs a day, they'll ultimately wind up in the hospital with arterial sclerosis. Isn't that being irresponsible to their fellow Americans? Would the writer have congress enact law to force everyone into exercise brigades and become vegetarians using that justification. No. The risk and disadvantage of having a free society is that people are free to make mistakes and be irresponsible to a limited extent, at a cost to the rest of us.
Let's say that we know that a certain number of people will climb a certain mountain every year, and ultimately result in being rescued. The easiest way of preventing this is to prohibit climbing the mountain altogether. We don't do that because we believe in freedom of personal action, and risk the attendant costs of such activities. No, Obamacare is just nanny statist over-protection at the expense of personal freedom. It has to go.
That is all the judge was saying.....activity or non activity and does the commerce clause cover this..if so....mandate is good, if not it is not...He said it is not....because he says if that were so, the gov’t could force people to buy and eat broccoli inthe interest of better health...which in my mind has nothing to do with this serious debate...but he is conservative and deflection from facts is their game....
It pertains to the limits of federal power, in general, and the scope of legislative and executive authority over the people. THAT is a far graver issue, and if we don't defend against it, may cause far, far greater HARM to our country than any healthcare problems ever did.
A government that could force its people to eat broccoli may also force its people to keep silent, to give up their liberties without due process, to stop praying, to do ANYTHING the state wants, without any checks and balances to stop the state.
The "broccoli argument" isn't specious. It's important. It's valid. It's absolutely critical. Just because the author begs the question doesn't mean we should.
is totally beyond logical explaination
None of this makes sense from a government or health care point of view. It's all about preserving profits for the insurance industry.
Personally, I like what Germany does. You're mandated to buy it, but you can opt out. You can just never opt back in.
It's the American way.