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Health Care, the Commerce Clause and Broccoli: What the Obama Administration Must Do to Prevail in the Supreme Court

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Now that the Supreme Court has decided to hear the constitutional challenge to the individual mandate contained in President Obama's Health Care Plan, the Administration has in all likelihood started to plan its litigation strategy for the oral argument in front of the Court. The overwhelming consensus among constitutional law professors and other Court watchers is that the four moderates on the Court will vote to uphold the mandate, Justice Thomas will almost certainly vote against it, and the votes of the other four Justices (Scalia, Roberts, Alito and Kennedy), for different reasons, are up for grabs. There is, however, one almost sure way to lose all four of those votes, and the Administration's present litigation strategy will almost certainly result in that loss, if the Court reaches the merits.

During the oral arguments in the Courts of Appeals on the validity of the requirement that all Americans (with limited exceptions) buy health insurance or pay a penalty, a number of the appellate judges asked the Government to provide 1) a limiting principle on Congress' power to require Americans to buy a commercial product and 2) Congress' power to regulate "commerce among the states." According to Adam Liptak of the New York Times, for example, the President's lawyers were asked in the DC Court of Appeals whether it "would be unconstitutional to require people to buy broccoli?" Incredibly, the answer was "No, it depends." That is not the answer the conservative Justices want to hear, and that is not an answer the American people will easily accept. And, this may very well be the most paid-attention to Supreme Court case in history. Does President Obama really want to answer the following question posed by his Republican opponent during a national debate in September: "Could you please explain to the American people why your lawyers suggested to the Supreme Court of the United States that Congress could require all Americans to buy broccoli?" I don't think he wants to have to answer that question.

The right answer to whether it would be unconstitutional for Congress to require the American people to buy broccoli is "Yes, it would be unconstitutional because requiring people to buy broccoli, in today's economy, would not be reasonably related to the regulation of commerce among the states. It is possible that, in a different world, it might be constitutional. But it would have to be a very, very different world." That is an answer both the Justices and the American people might understand.

The Justices are certainly going to ask the President's lawyers for a limiting principle, and for examples of economic activity Congress cannot regulate. We know this because, as Liptak also pointed out, the Justices asked the Clinton Administration the same questions during the oral argument of the Gun Free School Zones Act, which prohibited gun possession around schools. The Clinton Administration stubbornly refused to give any such example, and the result was that the Court overturned a law on commerce clause grounds for the first time since the New Deal. In the opinion in that case, the Court explicitly referred to the government's unwillingness to give an example of activity Congress could not regulate under the commerce clause. I hope the government doesn't make the same mistake because history does repeat itself.

The limiting principle that the government needs to establish is that Congress can only regulate those activities that are reasonably (and currently) related to commerce among the states. That is why Congress cannot currently require Americans to buy broccoli or gym memberships. If this is the test, then the individual mandate passes constitutional muster because, unlike the examples above, there is no question that, in this economy, Congress:

1) Has the power to regulate the health insurance/health care industries;

2) Can require insurance companies to cover people with pre-existing conditions;

3) That doing so makes it economically difficult to sell insurance; and that

4) The mandate makes the whole system work.

The Supreme Court has said that the possible abuse of a power is not a reason to find the government does not have that power. If Congress, at some later date, decides to pass a foolish and unreasonable law requiring Americans to buy broccoli, then the Court could step in. But, that is not a reason to find the individual mandate unconstitutional.

Congress' decisions on health care may or may not be well advised, but that is not a question for the Court. What is clear is that Congress' health care decisions are reasonably related to the regulation of commerce among the states. But, if the Obama Administration continues on its current course and fails to admit that there are things Congress cannot do, or economic activities Congress cannot regulate, that strategy will result in a loss in the court of public opinion, and probably in the Court as well. It would be a terrible shame if that happens because of a misguided litigation decision.