04/02/2012 05:11 pm ET Updated Jun 02, 2012

The Montana Supreme Court and Citizens United : Why the Supreme Court Cannot Afford to Find the Health Law Unconstitutional (Part 2)

HuffPost recently posted my piece, "Why The Supreme Court Cannot Afford To Find The Health Law Unconstitutional." One of the comments to that asked, if the mandate as part of "Romneycare" in the Commonwealth of Massachusetts is constitutional, how can the Supreme Court's conservative bloc find the very same mandate as part of "Obamacare" unconstitutional now? The more I thought about this query, the more I thought it was brilliantly asked and that the answer could well present a compelling reason why the mandate within the federal health care should remain constitutional -- certainly much more so than an argument against finding it constitutional using a slippery slope as was articulated by the likes of a Scalia (broccoli) and Alito (burial services).

Let's get the naysayers out of the way first. Yes, Massachusetts is a state and states have plenary rights whereas the federal government only has enumerated rights. One of the state rights is to regulate health as part of a its policing power. But, one of the enumerated rights is to regulate economic activity among the states. No one argued before the Supreme Court nor did any of the justices assert that accessing and affording health care does not impact interstate commerce; how could such an argument be raised given that health care accounts for over 17 percent of GDP? So, we agree there is a national problem, but a state solution via its policing power to a national problem is never the answer. Moreover, nine states have fashioned what Obamacare does when it comes to providing benefits [guaranteed issue] and precludes rating based on age, gender and state of health [community rating], but all but Massachusetts did not provide a mandate. And you can probably guess what occurred -- in those states (not having a mandate), insurers could not afford to pay for the benefits, consequently premiums went sky high and a state-based program fell of its own weight. So, even in a state where a mandate has succeeded, a state cannot solve a national problem; its idea, though can, i.e., the mandate.

Now, let's get back to the comment to my article. What if the Supreme Court tosses out the mandate as unconstitutional? What happens to the mandate in place in the Commonwealth of Massachusetts? Can't it then be unconstitutional? After all, the law of the land will be as of on or before June 30 when the Supreme Court rules the mandate unconstitutional (IF it does), so Massachusetts' mandate will violate the law of the land. And this is now where the Supreme Court of Montana and Citizens United case come into play.

Not too long ago, there was a legal challenge to corporate entities raising funds for campaigns in the State of Montana. That issue went all the way up to its supreme court where a majority of that state's justices decided that raising funds for campaigns this way violated that state's constitution and was unlawful. The case was appealed to the U.S. Supreme Court which stayed the enforcement of the Montana Supreme Court's decision, in effect the U.S. Supreme Court overruled the Montana justices based on the Citizens United decision. Because the Montana law, embedded in that state's laws for decades and decades, violated the law of the land per Citizens United, the Montana law could not remain effective and in force.

Now back to the federal health law and the mandate. If the law of the land becomes that requiring citizens of each state to purchase an insurance policy is unconstitutional, then the very same mandate in place in Massachusetts could be thrown out as well.

Do I believe Obamacare's mandate should be found unconstitutional. Of course not; it would be one of the biggest transgressions of constitutional jurisprudence that a conservative justice could undertake now. And a first year law student could see through anyone asserting a slippery slope argument when there is no market affecting in a substantial way interstate commerce as unique and as does the one for health care with its payment model in our country. But if the Supreme Court can strike down a state law as its Citizens United decision has done with what occurred in Montana, then what is to say that the mandate in Massachusetts cannot similarly be stricken and that it would also be worthless for any state to attempt to enact a similar minimum coverage provision.

And to those naysayers who look to raising taxes in lieu of a mandate in order to solve the health care crisis in our country, ask the Republicans in Congress including a Paul Ryan if that would be a good idea. Or, what about a single payer system. "Sure", "right" again. Ask the Teaparty folks if that would be a good idea. And finally, let's resurrect Obama's public option -- a great idea but it has already fallen on deaf ears in the House and Senate. Again, what is left -- yup, you got it: the individual mandate. And if the Supreme Court tosses it out, then millions more citizens will arise over the present 50 million Americans who assert with conviction that they cannot access and afford health care.

The Supreme Court cannot afford to find the individual mandate unconstitutional.