"No axiom is more clearly established in law or in reason than...wherever a general power to do a thing is given, every particular power for doing it is included."--James Madison, The Federalist Papers
As challenges to the constitutionality of the Affordable HealthCare Act ("AHCA") have moved through the court system, there has been a lot of smoke and noise about each District and Appellate Court's decisions.
One questions whether they should have been decided at all, because of the lack of "standing" and "ripeness", two of the preliminary criteria courts weigh before they even consider the substance. No one had been harmed, and no one knows how the individual mandate will be administered until 2014.
Because, however, the 2012 elections will propel the merits of the cases to the forefront of our political dialogue for at least the next 14 months, it is worth removing the smoke and noise from the constitutional argument so that everyone can clearly identify the issue.
Believe it or not, it boils down to a matter of timing. The complaining parties (e.g., States' Attorneys-General) have admitted it. In official filings with the courts.
It has nothing to do with broccoli or motorcycle helmets or tyranny or takeovers or all the other overblown political rhetoric flung on the wall to see what sticks. [It never had anything to do with grandma because, for now at least, until Republicans dismantle it, she is covered by Medicare].
Bear with me for a few sentences on the 'commerce clause', and it will become clear how all the gobbledygook and legal jargon just boils down to a matter of timing.
The Constitution grants Congress the power to
regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"....
To make all Laws which shall be necessary and proper for carrying into Execution 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.
The first of these powers is generally referred to as "the commerce clause", the second as the "necessary and proper" clause. Each power is specifically granted to Congress in Article I, Section 8 of the Constitution.
When the country was first formed, much commerce was within a single state and had no impact on the other states and thus was not "interstate". As the country has grown, as mobility has increased, as the economy became more and more intertwined, the sphere of the economy that affected only a single state narrowed.
Controversies over what part of commerce remained purely within a state, and thus outside of Congress's power to regulate, came to a head in Wickard v Filburn. Briefly, Filburn was a wheat farmer, complaining about government mandates to limit the amount he grew, even if the excess were to be used in his own household. The Supreme Court held unanimously that, because interstate commerce (in this case the price of wheat) would be affected by the accumulation of many small acts like Filburn's, the "commerce clause" and the "necessary and proper clause" gave Congress the power to regulate it, even if it meant compelling Filburn to burn his excess wheat or pay a fine.
That is, the Court said, commerce is now basically all interstate, not because the Constitution has been changed, but because the economy has changed.
How does the individual mandate in the AHCA figure into the commerce clause? The first question that has to be addressed is whether health care is part of interstate commerce. If old-age pensions (i.e., Social Security) are part of interstate commerce, if health care for the elderly (Medicare) and indigent (Medicaid) is part of interstate commerce, then it would be difficult to assert that health care generally is not.
Indeed, opponents of the individual mandate have stipulated in court filings that when a person enters the health care system--let us say, he is in a car accident--he is part of interstate commerce, and thus that it would be well within the constitutional powers of Congress to mandate that he purchase healthcare insurance at that time.
So, as soon as a passing motorist in our car accident example dials 911 and triggers the emergency services to send an ambulance, even the opponents of the individual mandate agree that the federal government can impose the duty to purchase healthcare insurance at that point.
It would be hard to sustain any other position. For example, if that car accident victim has no insurance and cannot pay for his care, then the hospital and physicians lose money, and they make it up by charging everyone else more. That is, they shift costs. And, whether it is sophisticated imaging equipment, medications, band-aids or just tissues at the bedside, all of these costs are part of interstate commerce.
Nonetheless, opponents argue, it is not known when, or if, anyone will be in the healthcare system, and thus it is not within Congress's power to mandate he purchase insurance before he gets into that accident.
More formally, their argument is that the healthcare insurance and healthcare delivery markets are separate and not sufficiently related to one another to be tied together.
That's it. If it were one market, even the opponents of the individual mandate agree that the federal government has the power to insist that everyone purchases insurance or pays a fine. If it were separate markets, so they say, then interstate commerce only "begins" when a person actually consumes healthcare products or services.
Ah, but you say, there is another difference. The AHCA does not tax people directly, but rather mandates that they purchase insurance from a private insurer or pay a fine if they do not.
The argument is absurd on its face. The fine has all the indicia of a tax. To avoid it, an array of choices is provided, far less coercive than a single tax would be. Mr Filburn (see above) was told he had to burn his excess wheat or pay a fine, and that was unanimously decided to be within Congress's power to mandate. [Note, also, that the opponents would have to argue that a single tax was less coercive than providing freedom-of-choice among private insurers to escape a fine--I would like to hear them argue that one!].
Additionally, under the AHCA, states can create their own public options or single-payers and not subject their citizens to the fine or the mandate to purchase insurance from a private carrier. Vermont is already doing it. That is, the states have remedies built-in to the act to avoid the choices the States' Attorneys-General find so onerous.
Finally, because the individual mandate does not kick in until 2014, there is no way to know how the provision will be interpreted and administered. Hence, it is several years premature to determine whether its implementation violates the constitution. If it does, and it is difficult to see how it would, whatever feature of that implementation that is beyond the authority of the federal government can be adjudicated at that time.
So, the Constitutional issue boils down to timing: how long before a person is consuming healthcare services or products, and thus is by everyone's admission affecting interstate commerce, can someone be mandated to purchase insurance or pay a fine? An hour? A day? A year? Anytime?
A properly-informed Supreme Court would note that any separation between the markets for healthcare insurance and consuming healthcare products and services is artificial at best, and more likely just simply dishonest.
How can we know that?
Perhaps this is too obvious even to write, but healthcare insurance would not exist if there were not healthcare services. If there were no illness, or no doctors or hospitals or drugs or mechanical aids or surgical procedures, there would be nothing to insure against.
Second, just as it is uncertain whether any particular individual at any particular time will "enter" interstate commerce by consuming some healthcare product or service, it is certain that a portion of the population will do so every day, every week and every year. It is just the same as social security and medicare--one has no idea whether he will live to 65 and thus enjoy the retirement or medical coverage for which one has been paying, but we know that a certain portion of the population will.
Indeed, this is the whole basis for insurance. It is a population, statistically-based, concept. One does not purchase healthcare insurance as one is hoisted into an ambulance anymore than one can purchase life insurance just before one's last breath. If one does not have healthcare insurance, one either pays himself or imposes his costs on the rest of us, and there is undisputed data on how much that additional cost adds to others' health insurance premiums.
Moreover, the very existence of a considerable fraction of uninsured potential patients ALREADY impacts healthcare costs because hospitals, nursing homes, and other providers increase their charges to insurance companies in anticipation of having a percentage of unpaid bills.
The entire premise, therefore, that uninsured citizens who are not currently purchasing healthcare services are not affecting commerce is demonstrably wrong.
Third, Congress deserves great deference when it makes conclusions about facts, and Congress has determined that it is one market. Congress has also determined that the uninsured impose costs on the rest of us. The US Supreme Court does not operate like German Constitutional Court that conducts its own hearings and fact-finding inquiries.
In my personal opinion, the Justices should overrule all prior decisions, declare that the case is not ripe for consideration, and that the plaintiffs have no standing to sue. That is, at this time, the most legally honest result.
One doubts that will occur. Instead, the decision will be political, results-oriented, adorned in language of high legal principle.
But, it is really just a question of timing. And, the argument that the federal government has the power to compel purchase of insurance when one is already injured or ill, as the plaintiffs admit, but not a nanosecond before, is not only rather absurd, it ignores that the healthcare delivery market is, today, being impacted by cost-shifting based upon estimates of non-payment by the uninsured.
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Amitai Etzioni: Cut Costs, Not Reimbursement
The bill also permitted individual states to devise a plan that achieved the goals at a better price. So BUY FROM KENTUCKY if you wish!
HOWEVER, If you wish to buy a plan that excludes other people...so if your premiums are lower because you are younger or INITIALLY HEALTHIER (I would have incentives that encourage people to become healthier)...EXPECT A SURCHARGE on your premiums to fund the greater pool of citizens.
Also, don't complain about the increase in your insurance costs because of illegal aliens and poor people using expensive emergency rooms because they don't have access to inexpensive clinics.
Tell the insurance companies what services we desire (in categories and principles not in minutiae) Tell the pharmaceutical companies what we are willing to budget for pills. THEN find a MUTUALLY agreeable way to encourage REDUCED NEED!
Make the PROFIT anyone receives dependent on VALUE (which should be IMPROVED HEALTH, not more illness) to the consumer. The health care industry is failing if more people get sick, fat or infirm. Put a strict cap on ADMINISTRATIVE COSTS (like Japan and most of the rest of the world) See what would happen if insurance companies, pharmaceutical companies and food industries really got their focus right.
The incentives in our current program almost insure failure. The goal is more profit for corporations not more wellness for people. As long as that is the case, we will not succeed in anything.
Why is this even being argued?
Congress mandating purchase of a good or service provided by a private business based on their Constitutional ability to regulate interstate commerce is already a rather thin argument. Except, Congress forbids the buying and selling across state lines. Thus the purchasing or not purchasing of health insurance is not interstate commerce. It is done entirely within a single state’s boundaries.
Other aspects of the health insurance business may well fall under Congress’ authority to regulate interstate commerce, but nothing about an individual’s transaction with his or her insurance provider traverses a state line. Whatever the established jurisprudence on the commerce clause, specifically relating to United States v. Lopez' assertion that government can regulate "activities that substantially affect or substantially relate to interstate commerce", in which case non-participation in the health insurance market does indeed substantially affect pricing for those that do participate in the market.
The fact is that an individual’s decision to buy or not buy insurance coverage from an in-state insurer is not interstate commerce.
So, ironically, it’s government’s monopoly on health insurance regulation at the state level that wipes out any federal claim to mandate purchase of health insurance.
It was questionable and (in my opinion) flawed interpretations of the General Welfare Clause and the Necessary and Proper Clause that brought us to the brink of being the bankrupted welfare state we are today in the way these radical interpretations brought us Social Security, Medicare, Medicaid and virtually any other welfare benefit given to deadbeats today.
Based on those radical interpretations, particularly in regards to the Necessary and Proper Clause, the liberal welfare state has essentially been justified with the vast and limitless authority now given to the federal government in being able to use taxation to finance legislation and federal programs that were never outlined as enumerated powers of government in Article 1, Section 8 of the US Constitution.
Considering how paranoid the Founders were of a centralized authority in the federal government, does anyone really think the Founders intended the federal government to have the authority to use taxation to finance studies of whether Integral Yoga "can be an effective method to
reduce the frequency and/or severity of hot flashes” in menopausal women?
Of course not. Nobody does. Yet these rulings, made on very questionable interpretations, have essentially opened the floodgates for unconstitutional government as demonstrated with the example I used of a stimulus funded scientific study.
If you don't like the yoga studies, vote for TRANSPARENT funding legislation where Congress responds more directly to the choices their constituents make when they authorize funding. If constituents want X percent of the budget to go for scientific research into health or Y percent going to research and development of profitable, yet unhealthy food...just permit your opponent to spin the report to your constituents, perhaps...so you get both sides of the story.
The Supreme Court also won't find the individual mandate, as passed, to be a tax. It was written very poorly if intending to be treated as a tax, as it clearly punishes behavior. There have been plenty of alternative versions written in a manner that could be seen as a tax, but the version passed just isn't. The judges finding no jurisdiction due to the AIA did not even address if it was a tax, but rather said the question is irrelevant until AIA permits hearing the case. Every judge who has actually weighed whether the ACA's individual mandate is a tax or penalty has found it is clearly a penalty. For the Supreme Court to find otherwise, they would have to throw out the rules currently used to differentiate between a tax and penalty.
The government just needs a coherent argument, not judicial non-starters like "uniqueness," for the Supreme Court to uphold the individual mandate.
Moreover, inactivity DOES influence commerce in health care as indicated in the article, providers charge more knowing a percentage of the uninsured will never pay, and thus every one else's costs and premiums are higher.
if you wish to see an example of a decision of a "properly-informed" supreme court concerning the commerce clause, you need look no further than united states v. lopez. chief justice rehnquist, writing for the majority, stated:
"To uphold the Government's contentions here, we have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States."
"coincidentally", this case is being cited in the suits filed by the state attorneys general against ahca.
when ahca was proposed, the obama administration argued that is was not a tax in order to make it more politically palatable. now that it is being challenged their position has changed to claim that it is indeed a tax. the initial claim, while disingenuous, is more plausible.
Healthcare is hardly a police power. It is very clearly an economic matter, for which inference need not be piled upon inference. Moreover, the plaintiffs all stipulate to that, recognizing the government's power at the time of injury or illness. The ONLY question, as pointed out by the article, is whether an uninsured influences that market. He/she clearly does.
the supreme court in united states v. morrison (and in agreement with lopez) rejected wickard-based arguments such as those you gave in your article and quoted the nrlb v. jones decision stating that the scope of the interstate commerce power
"must be considered in the light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government."
despite claims about how "complex" our economy is, healthcare is a local commercial activity.
as i pointed out in my original comment, merely influencing a market is such a low threshold and so vaguely defined as to be a useless standard for application of the commerce clause. if the plaintiffs stipulate this, they are in error and the court is likely not to consider it.
Roosevelt told the American people it was essentially insurance -- a state run retirement savings program. However, behind the scenes when the issue was being litigated with the High Court, Roosevelt's lawyer argued just the opposite -- it was not insurance and that it functioned like any other tax.
Talk about disingenuous. Had the lawyers presented it to the SCOTUS as insurance, it more than likely gets struck down as unconstitutional. Already cowering from FDR’s court-packing threat, the Supreme Court ruled that Social Security is constitutional, but that the taxes paid into it are simply general revenue “and are not earmarked in any way”. The Supreme Court has ruled specifically that Social Security is not insurance and that the government has no legal obligation to spend Social Security taxes on Social Security benefits. And those benefits are hostage to political winds as history has demonstrated.
Actually, I don't have a problem with ESSENTIALLY insurance being a tax. That is what government is. It is essentially insurance that you will not have a foreign government attack you without having your own army ready. It is essentially being assured of a means of transportation(roads) or communication (post office and public airwaves) when you wish to attain your "pursuit of happiness."
This is a rather weak legal analysis of the subject, Mr. Abrams.
First, you dishonestly suggest that the law in Filburn "mandated" that the farmers burn their crops. In truth, the law at issue prohibited the farmers from exceeding their designated limits. Filburn violated this law by growing too much wheat, not by refusing to burn it (the burning was part of the punishment, along with a fine).
Second, you seem to conflate the power to tax with the power to regulate interstate commerce. Congress has both powers, but whether something "has all the indicia of a tax" or not is irrelevant to whether Congress has power under the Commerce Clause. Had Congress appropriately enacted the legislation under its Tax and Spend powers, it may very well be constitutional, but Congress did not do this and politicians repeatedly denied that it was a tax.
Third, your argument on ripeness is wrong. Nothing prevents the courts from pre-enforcement review of statutes. It is clear how the mandate would be violated (not buying insurance) and it is clear what would happen if someone violated the mandate (they would be assessed the fine).
I am OK with omitting the Tax analogy. Commerce can be regulated by a fine. That is OK.
It is not clear how the Secretary of HHS would actually administer the assessment of the fine. She would have to write regulations, subject them to hearings, and then issue final regulations. She also can grant exemptions. The case is not ripe.
I would disagree with that statement. Under the logic of the Supreme Court, it was the excess growing of wheat (taken in the aggregate) that affected interstate commerce. Thus, Congress could regulate the activity (growing wheat) by imposing limits, even if an individual's wheat never entered interstate commerce. The law presupposed that an activity existed. If we didn't grow wheat, the law had no application. It was only when we decided to act by growing wheat that the law became relevant to us. In FIlburn's case, he acted by growing wheat, and that activity could be regulated for the reasons set forth by the Supreme Court, even if the oucome included forcing him to then burn his wheat.
In contrast, the mandate seeks to create activity (buying health insurance). Filburn stood for the proposition that activity in the aggregate could impact interstate commerce and, therefore, Congress had the power to regulate that activity. If the Court were to uphold the mandate, they'd create a new proposition that non-activity in the aggregate could impact interstate commerce and, therefore, Congress has the power to regulate non-activity.
(continued)
This would be an entirely new holding for the Court and would be limitless in application. Theoretically, to regulate an activity like growing wheat, Congress has to show that the activity as a whole impacts interstate commerce. One can easily imagine activities that would not meet this threshold.
But virtually any non-activity would satisfy this test because the non-activity is always going to be compared with a theoretical activity. Does my decision to not eat broccoli affect interstate commerce? Of course not.... but yet, once you think about the commercial impact of every person in the nation suddenly eating broccoli, then it becomes "clear" that not eating broccoli (in the aggregate) has an amazingly significant impact on interstate commerce.
Given Lopez and Morrison, I just don't see the Supreme Court embracing the most expansive view of the Commerce Clause ever raised by Congress.
Honestly, the logic of the left eludes me.
If I were running for Governor of any state, I'd campaign for a very low cost (startup only) public option. It would provide the state a major competitive advantage for businesses, and thus create a climate that businesses would want to move to. Why? Their health care costs would be lower.
For example the constitution prescribes capital punishment, but then lawyers argue it is unconstitutional. To the laymen this is sophistry and engenders a lack of trust in the legal profession and the courts. This class of Americans does not like something so they change it . They sidestep the consent of the governed.
So once I see this is being discussed by a lawyer I have to put aside this learned bias of lawyers as a class because of previous misconduct and assume this particular lawyer is not going to just play word games. It is like a leap into darkness, it requires a lot of faith.
BTW: I am against the death penalty, but I also am for the consent of the governed.
IMO this law will affect the people in their 20's a lot they almost never get sick and now will have to get insurance for no reason.
But, to your more general point, what happens if you are in a car accident at age 20, and have no insurance, but need multiple surgeries to put you back together. Who pays?