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If at First You Don’t Succeed, Hope for Activist Judges

Conservative State Attorneys Erroneously Claim Health Reform Is Unconstitutional

Eleven conservative state attorneys general claim that health care reform is unconstitutional, but this has no basis in the law, writes Ian Millhiser.

President Obama broke out his pen today to sign the Senate Health Reform Bill, but 11 right-wing attorneys general are already trying to stand in the way of reform. (AP/Manuel Balce Ceneta)
President Obama broke out his pen today to sign the Senate Health Reform Bill, but 11 right-wing attorneys general are already trying to stand in the way of reform. (AP/Manuel Balce Ceneta)

The ink on the recently enacted health legislation is barely even dry, but right-wing officials are already trying to wipe it away. Eleven conservative state attorneys general are claiming that the new law is unconstitutional in a series of lawsuits, some of which they promised to file immediately after President Barack Obama signed the bill into law. Their arguments, however, have no basis in the Constitution.

To understand why, one must first understand how the Constitution allocates power between Congress and the states. Congress’s authority is limited to an itemized list of powers contained in the text of the Constitution itself, whereas states have somewhat broader authority.

Even though Congress’s powers are not unlimited, they are still quite sweeping. One of Congress’s broadest powers, for example, is its power to spend money. Congress is free to spend money, so long as it does so to “provide for the common defense and general welfare of the United States.” For this reason, the provisions of health reform that create new subsidies or otherwise spend federal dollars are clearly constitutional. There is no question that a program designed to ensure that every American has affordable health coverage—no matter what their income or employment status—provides for the “general welfare” of this country.

To their credit, the 11 attorneys general do not appear to question this obvious truth. Their suits focus instead on the new law’s provisions that require individuals to carry health insurance—whether provided by a public program or an employer, or purchased on their own (with help from subsidies for low- and middle-income individuals)—and that fine employers who do not provide health insurance to their employees. The attorneys general claim that both provisions fall outside of Congress’s enumerated powers.

But the attorneys general are wrong. Article I of the Constitution empowers Congress “[t]o regulate commerce . . . among the several states.” The language of this “Commerce Clause” of the Constitution contains two elements. Congress must attempt to regulate “commerce” in order to invoke its commerce power, and this commerce must be “among the several states,” for example, multistate in nature. A requirement to carry health insurance passes both of these tests.

The Supreme Court has not handed down a concise definition of just what qualifies as “commerce,” but even ultraconservative Justice Antonin Scalia acknowledged in a case called Gonzales v. Raich that Congress has sweeping authority to regulate “economic activity” under the Commerce Clause. There is a long line of cases holding that Congress has broad power to enact laws that substantially affect prices, marketplaces, and commercial transactions, which support Justice Scalia’s conclusion. A law requiring all Americans to hold health insurance does all of these things.

The very same Gonzales v. Raich case establishes that Congress can regulate even tiny insurance providers who serve only a handful of local residents because such local activity substantially affects a multistate market. Raich held that a federal ban on medical marijuana should apply even to small-time growers who give their product away to local residents. Because small-time growers compete in a marketplace with major interstate dealers of marijuana, a local grower’s decision to offer free cannabis to a few patients influences the price of marijuana in the interstate marketplace, and this effect on interstate prices is enough to bring a local grower’s actions within the Commerce Clause’s umbrella.

Most of the attorneys general’s rhetoric has been heavy on political grandstanding and light on actual legal arguments, but proponents of the attorneys general’s viewpoint do cite two cases where the Supreme Court struck down a law for exceeding Congress’s commerce power. In United States v. Lopez, the Court struck down a law banning the simple act of bringing a firearm into a school zone. Five years later, the Court in United States v. Morrison struck down a portion of the Violence Against Women Act.

What these cases have in common is that the laws at issue involved activity that was far less economic in nature than the purchase of health insurance. Neither carrying a gun nor committing an act of violence involves a sale, a market, or an exchange of something of value. No employer hires workers simply to carry a gun into a schoolhouse, and there is little marketplace for cowardly acts of violence. In other words, Lopez and Morrison stand for the proposition that Congress’s power over noneconomic matters is far more limited than its power to enact laws with an economic impact.

This is where the attorneys general’s argument breaks down. The provisions they take aim at would require most Americans or their employers to buy a product—health insurance coverage—which pools thousands of people’s premiums together and pays those people’s medical costs as they become ill. These requirements will lower premiums nationwide by requiring more healthy individuals to buy into the system, which will also reduce the risk of catastrophic financial loss should a person who was previously uninsured experience serious illness. It is difficult to imagine a law that has a more obvious interstate economic impact than a requirement that all Americans be insured.

The attorneys general offer no serious rebuttal to this reality that Congress has sweeping authority to enact economic regulation, and a requirement that all Americans be insured is economic in nature. Instead, they claim that health reform is unconstitutional merely because it is unusual. In the words of Virginia Attorney General Ken Cuccinelli, “at no time in our history has the government mandated its citizens buy a good or service.”

Cuccinelli is not telling the truth. President George Washington signed the Second Militia Act of 1792, which required a significant percentage of the U.S. civilian population to purchase—at their own expense—“a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack” along with various other items they would need if the president ever called them up to serve in the militia. Many of the members of Congress who voted to enact this law were also members of the Philadelphia Convention that wrote the Constitution itself.

And even if Cuccinelli were telling the truth, his argument is absurd. Before Social Security, the federal government had never attempted to provide all Americans with guaranteed pensions. Before Medicare, there was no federal program guaranteeing health care to most seniors. Before the first stoplight was erected, no government had ever attempted to regulate automobile traffic via an electronic device. If a law is unconstitutional merely because it is unprecedented, then the government is completely forbidden from trying new things.

In short, the attorneys general’s lawsuits have no basis in the law, and no grounding in the text of the Constitution. If the judges hearing their suits have any respect for precedent, Cuccinelli and his colleagues will be laughed out of court.

Ian Millhiser is a Policy Analyst for American Progress, where his work focuses on government efficiency and transparency.

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Ian Millhiser

Senior Fellow