02/13/2011 06:25 pm ET Updated May 25, 2011

The Affordable Health Care Act: A Law Too Big to Fail?

The debate over the constitutionality of the individual health insurance mandate is headed to the Supreme Court. The narrative for how to read the outcome is set: if the Court upholds the law, it will be acting in a principled and consistent way, but if the law is struck down that will be the final proof that judicial opinions are just politics, after all. Here's Laurence Tribe -- one of the preeminent constitutional scholars of our time -- in a New York Times editorial:

"Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law's constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?"

It takes a good deal of hubris to disagree with Professor Tribe on a question of constitutional interpretation. Nonetheless, I find his analysis to be entirely unconvincing. Here's why.

1) "Regulating" is not the same as "mandating."

The main argument against the mandate's constitutionality is that it is not a regulation of commercial activity, but rather a regulation of commercial inactivity; that is, what Congress is attempting to "regulate" is the decision to refrain from purchasing health insurance. This distinction, for example, was at the heart of Florida District Court Judge Vinson's decision striking down the law.

The basic standard on which Vinson relied was announced in U.S. v. Lopez, which says that Congress has the authority to regulate "activities having a substantial relation to interstate commerce." Vinson concluded that penalizing the failure to obtain health insurance is not regulating an "activity."

Supporters of the law argue that the "activity/inactivity" distinction has never been part of Commerce Clause jurisprudence in the past. They are absolutely right... but that could be because there is no precedent for Congress attempting to require participation in commerce as an aspect of regulation. The closest thing to a precedent that anyone can find is the Militia Act of 1792. "[E]very citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges..." and so on.

The problem is that the Militia Act was not adopted pursuant to Congress' authority to regulate commerce, it was adopted under the authority granted to Congress by the Militia Clause of Article I, section 8 ("To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States.") No one has been able to come up with a prior instance of Congress using its Commerce Clause authority to require individuals to engage in commerce.

Does that mean that the provision is necessarily unconstitutional? Not at all -- but it makes a hash of the argument that the provision is functionally equivalent to the hundreds of statutes that have been upheld in previous cases. To put it simply, it is difficult to see the argument that there is no distinction between regulating commerce and mandating commerce.

2) Can a law be too big to fail?

This brings us to the next part of the argument. Supporters of the Act rely heavily on a 2005 case called Gonzales v. Raich, in which the Court -- with an enthusiastic concurrence by Justice Scalia -- upheld the provision of the Federal Controlled Substances Act that made it a crime to possess marijuana (this was the case upholding the authority of the DEA to punish participants in California's medical marijuana program despite the provisions in the state law.) By itself, that application clause was clearly beyond the scope of the Commerce Clause, but the Court ruled that because it was a necessary element of a larger statutory scheme which was itself within Congress' Commerce Clause authority the specific provision could come along for the ride.

Supporters of the Health Care Act argue that the analogy between the provision at issue in Gonzales and the individual mandate make the case a slam dunk; there is even an imagined scenario in which Justice Scalia may be the one to cast the deciding vote in favor of the law.

I think that argument makes about as much sense as appealing to the Militia Act of 1792 for a precedent, and the reason why has everything to do with the difference between law and politics. The Court found that the marijuana provision in Gonzales was "necessary" to the larger statutory scheme in the sense that without it, the whole system of regulation would be ineffective. The individual mandate, by contrast, is only "necessary" in the sense that it makes the Affordable Health Care Act affordable, and even permits the law to be described as a cost saving measure based on CBO projections. But that is a strange notion of necessity. The Affordable Health Care Act could be paid for in any number of other ways, starting with raising taxes. Those other approaches are politically unpalatable, but like political irony, political palatability is not a constitutional standard.

The Democrats saw this issue coming, which is precisely whey the drafters of the law declined to include a "severability" provision. That is a provision that says to courts "if you find that one provision of this law is unconstitutional, please leave the rest of it alone." A severability provision is not binding -- courts are free to make that determination on their own -- but it is a powerful signal. In deliberately omitting a serverability provision from the Affordable Health Care Act, the Democrats were sending a signal that this is a law too big to fail: you can't possibly strike down this whole law, this particular part is necessary to the whole, therefore you can't strike down this part because then the law would fail, which would be intolerable. In Florida, Judge Vinson called their bluff.

Critics rightly point out that Vinson's opinion's weakest point is his failure to make anything more than a passing mention of Gonzales (instead he spends a great deal of time talking about the Federalist Papers). Having found that the mandate provision was not severable from the rest of the law, they say, he ought properly to have ruled that the mandate's constitutionality is parasitic on the constitutionality of the entire scheme. But that relies on a court accepting the idea that "necessity" can refer to political needs; as a political matter the law could not have been passed if it had to rely on paying for itself by direct public expenditures, so instead it relies on mandating lots of private expenditures... but don't call them taxes! That's a strange notion of "necessity."

3) A tax by any other name

This is not the end of the argument. Perhaps the strongest argument in favor of the constitutionality of the Act is the one that points out that there were any number of ways in which Congress could have achieved precisely the same effect without any risk of running into constitutional difficulties. To take the most obvious example, instead of imposing a penalty on anyone who fails to obtain health insurance, Congress could simply have raised everyone's taxes and then provided an exemption for anyone who has health insurance. In that case Congress would have been acting under its taxing power rather than under its Commerce Clause authority, and there would have been no problem. Is it not an egregious example of formalism to say that the constitutionality of such an important law turns on a mere question of wording?

I think the answer is "no." There is a democratic principle at work here, one that has to do with maintaining the distinction between public and private authorities. The Democrats tried to blur that line for political reasons. There would be no constitutional objection whatsoever to the creation of a public health insurance system, but the Democrats wanted to use the private market to achieve its legislative aims because they did not think they could make the political case for the public option. For that matter, there would not even be any obvious constitutional problem with Congress abolishing private health insurance altogether (single payer), or even abolishing private health care altogether (socialized medicine). Those outcomes are somewhere between unlikely and impossible for political reasons, not constitutional reasons. After all, there are lots of things the government can force us to do (attend school or its equivalent, report for military duty), but those all involve public institutions.

But there are arguably problems that arise when Congress tries to privatize government. Perhaps we should understand the Constitution's descriptions of powers and lawmaking processes as imposing a requirement that any really major program has to remain in the hands of government. The individual mandate is not like the Western movies where the sheriff says "raise your right hands, you're deputized"; the reason conservatives liked the individual mandate in the first place (they were for it before they were against it), was that it left the insurance business free from government control. But either the cowboys have been deputized, or they haven't, and if they haven't the sheriff has no business telling the rest of us we have to take their orders. In philosophical terms, the government does not have the authority to delegate its lawmaking authority to private parties. The individual mandate smacks of that sort of delegation: the private insurance companies set the rates, terms, and conditions through market competition, then the government enforces those market outcomes just as though they were the products of democratic deliberation.

Regardless, when this case comes to the Supreme Court, the question is going to turn on whether compelling someone to buy something is regulation of commerce, and whether the mandate is "necessary" for health care reform. And if the answers to both of those questions are "no," then the only argument left is that the Affordable Health Care Act is too big to fail.