Is ObamaCare Constitutional?
Here is the judge’s decision. Here is an excellent analysis by Randy E. Barnett and Elizabeth Price Foley in The Wall Street Journal. Remember all those New York Times/Paul Krugman/Ezra Klein/ et. al. editorials arguing that ObamaCare can’t work without the mandate? The judge agreed! He said if the mandate is unconstitutional, the whole act is unconstitutional because there is no “severability clause,” and because the mandate and the rest of the act are inextricably linked. And despite the NYT hyperventilation on the issue, this decision appears to be very carefully reasoned. Also, George Washington University law professor Jonathan Turley writes in this morning’s USA Today that Democrats have no one but themselves to blame for not including a basic severability clause in the health care law.
John:
Health care certainly involves interstate commerce, so the commerce clause certainly applies to the production and consumption of health care services.
But the problem with the patient protection and affordable care act is not that it forces us to buy health care services. The problem is that it forces us to buy health insurance. While virtually everyone consumes health care services and some of this inevitably spills over state lines, many people do not buy health insurance, and many of those do not do so as a purposive choice. Indeed, this is a major premise of the act, a major justification of the need for reform, and that argument is well founded in its own right (which is why I favor vouchers for everyone).
I realize that one can argue that health care services and health care insurance are peas in a pod, so if the commerce clause applies to the former, it applies to the latter. But there are important differences. The sloppy logic of the past (e.g., Vickard v. Filburn’s extension of what constitutes interstate commerce among extant activities) is qualitatively different from the sloppy logic of the present case (converting the set of things not happening (inactivity) to the set of things that are happening (activity)). The set of things that are not happening is always much larger than the set of things presently happening, so in a very different way, by sheer mathematical logic, the new law raises the specter of a qualitatively different and larger extension of government discretion over private behavior, potentially one without bounds. Can you tell me how one can reject the Virginia and Florida decisions without leaving government discretion over private activity unbounded if inactivity is construed to fall under the Commerce Clause too? Of course not. But that, in turn, means that the states and the citizens are not residual controllers of action, the federal government is. That is not merely an erosion of freedom derived from chewing up a larger part of the action space. That is a flipping of the logic of residual control and therefore antithetical to freedom.
The solution is to meet this problem at its source and to solve it as narrowly as possible. The source of the problem is that health care services in America are effectively non-excludable. To conservatives who pine for the past I say “get over it – we will not stand by and watch people suffer – we haven’t for some time and we won’t in the future.” This means we have a genuine market failure problem at work (non-excludabilty free-riding) and therefore solving this problem may very well be consistent with constitutional license to promote the general welfare. Universal vouchers solve the problem without tortured logic (wordplay to convert inactivity to activity) that sets a terrible precedent with dangerous consequences.
Simple question: if you were so poor in 1975 that you could not afford food, would you have preferred getting food stamps in the U.S. or being able to shop to heart’s content in a Soviet one? I’ll take a modest voucher for everyone to eliminate the distortions that have undermined what is nevertheless the best health care system in the world to a 2700 page central planning document anytime.
This is not rocket science. Let’s focus on solving the problem and stop worrying about giving an army of policy wonks something to do.
Dave
I just want to say that I enjoy reading this stuff. Thanks for including me.
Bill
Excellent links. Thanks for posting.
The decision was very well reasoned. Very clear. Very persuasive.
The way the Affordable Care Act (ACA) is written, I do believe it crosses the line and is unconstitutional. The ACA prohibits insurers from charging (costly) sick enrollees more than healthy ones. The law requires insurers to charge older enrollees only about half their expected costs compared to young enrollees (who could be required to pay twice their expected costs). Enrollees are required to have comprehensive benefits (i.e. essential benefit package) rather than insurance that merely covers their expected costs.
The ACA requires residents to purchase costly commercial insurance products that are intended to create huge cross subsidies. If the law were written in such a way to merely require proof of financial responsibility (i.e. catastrophic coverage), then I would not be quite as convinced the ACA violates the constitution.
I predict that the mandate will turn into a 2-3% raise in the payroll tax with the upper limit removed (if struck down). This will survive constitutional muster and pay for insurance for all. No need for vouchers as those can lead to fraud.
Erik raises an interesting point. Kevin Pho at the KevinMD blog suggests the repeal of the ACA will lead to a Single-Payer system. http://www.kevinmd.com/blog/2011/02/health-reform-repeal-lead-single-payer-medicare.html
I don’t particularly agree with his logic, however. He suggests the current system is unsustainable and repealing the ACA will perpetuate the flawed system and ultimately hasten the public’s willingness to embrace a Single-Payer system.
I would argue that is even more true of the ACA. The ACA not only does nothing to reduce the unsustainable spending; it will actually boost spending to levels even higher than we experience today.
This whole thing will not be settled in Congress or by they states. It will have to be hashed out in the US Supreme Court.
Erik, I would agree with you. However, the Dems no longer have that option, because they cannot get such a fix through Congress anymore.
If this decision had come down in 2010, they could have rushed a fix through. However, it invites the question: Why did they not do so in the first place?
I suppose that they believed that limiting the Medicare tax hike to households earning over $250,000 a year, and taxes on providers that are opaque to voters, would enable them to dodge the charge of hiking taxes on the middle class.
Plus they wanted to take some wind out of Republicans’ sails by co-opting Mitt Romney’s (flawed) argument that a mandate and penalty somehow impose a greater degree of “individual responsibility” than tax hikes do.
They rolled the dice – and it looks like they’re losing.
When you discuss the health care plans proposed by the Republicans in the past, you have to keep in mind the recent devolution of the Republican Party. The current Republican Party wouldn’t accept a Nixon or even a Reagan. In many ways, the currents Republican party represents the triumph of the John Birch Society.
artk, back to name calling?
The Republican party is more libertarian than it has ever been. That’s libertarian with a small “L” as in Lincoln, Jefferson, Paine, the abolitionists, the suffragettes — all the people who helped give you the liberties you do not seem to very much enjoy.
Even so, the party is so far from where it should be that there is little sense in broad brush labeling. There are a lot of Democrats who are better than the average Republican.
Answer to your question: It should be unconstitutional.
“But until it asks for a stay and a court grants one, the government should cease and desist from implementing ObamaCare if it’s to stay within the bounds of the law.”
Since when did the Obama Administration worry that much about the bounds of the law, or the Constitution, for that matter?