If you can't stop the bill, just have another Bush v. Gore (Balkinization)

[kpete]

Sunday, March 21, 2010

If you can't stop the bill, just have another Bush v. Gore

JB

In today's Washington Post, Randy Barnett outlines various theories for attacking health care reform if it is passed. If all else fails, he offers the remarkable suggestion that the Supreme Court might try what it did in an infamous case decided almost exactly ten years ago-- Bush v. Gore.

The most likely constitutional challenge will be that the individual mandate to purchase health insurance is unconstitutional because it forces people to buy insurance. Barnett omits to mention in his op-ed that the mandate is actually structured as a tax: if you don't buy insurance, you are assessed a tax for each month you fail to pay premiums. Barnett argues that individual mandate must be unconstitutional because the government can't require people to do anything; however, the government can make you pay taxes. It does so every year. Congress pretty clearly has the power to pass such a tax under its powers to tax and spend for the general welfare. This is an easy case for constitutionality.

Congress also has the power to require the individual mandate under the Commerce clause, despite Barnett's objection. That is because Congress can regulate economic activities that have a cumulative economic effect on interstate commerce, and as Justice Scalia pointed out in Gonzales v. Raich (a case, by the way, that Barnett himself litigated and lost in the Supreme Court), Congress can regulate even non-economic activities if it believes that this is necessary to make its regulation of interstate commerce effective. As I've explained elsewhere

Critics charge that . . . people are not engaged in any activity that Congress might regulate; they are simply doing nothing. This is not the case. Such people actually self-insure through various means. When uninsured people get sick, they rely on their families for financial support, go to emergency rooms (often passing costs on to others), or purchase over-the-counter remedies. They substitute these activities for paying premiums to health insurance companies. All these activities are economic, and they have a cumulative effect on interstate commerce. Moreover, like people who substitute homegrown marijuana or wheat for purchased crops, the cumulative effect of uninsured people’s behavior undermines Congress’s regulation — in this case, its regulation of health insurance markets. Because Congress believes that national health care reform won’t succeed unless these people are brought into national risk pools, it can regulate their activities in order to make its general regulation of health insurance effective.

more:
+ links:
http://balkin.blogspot.com/2010/03/if-you-cant-stop-bill-just-have-another.html

[David__77]

1. Exactly, there is NO mandate to purchase health insurance.

It is, instead, a tax penalty. Very different conceptually, and the court ruled generations ago on that question...