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Go to Front Page Henry Paul Monaghan: A Conservative Law Professor on the...

POLITICS APRIL 16, 2012

A Conservative Law Professor on the Obvious Constitutionality of Obamacare

The Constitution of the United States creates a national government of enumerated and therefore limited powers. Accordingly, troubled members of the Court should be applauded for their efforts to search for the limits to any principle advanced to uphold the health care mandate of the Affordable Care Act (ACA), not made the target of strident and caustic criticism. The Court is a great institution, and its members don’t deserve such abuse.

That should be said, and I want to say it as clearly as I can. Nonetheless, I submit that sustaining the mandate would not give rise to the justices’ fears of boundless federal authority.

The individual health mandate surely passes constitutional muster under settled judicial principles. The Constitution’s Commerce Clause grants Congress the authority “to regulate commerce ... among the several States.”  The Court's precedents establish without question that Congress may regulate intrastate economic activities that Congress (not the Court) reasonably concludes have a substantial effect on interstate commerce. The existence of such congressional authority is especially clear when the challenged provision itself is part of a comprehensive legislative scheme that regulates interstate commerce.

Moreover, the market for health care is distinctive (if not entirely unique) in several key respects. Virtually all of us will need and obtain health care at some point, but we often cannot predict when or in what ways we will need it. And for the vast majority of us, direct payment for the health care services we obtain would be prohibitively expensive. Yet not obtaining needed medical care can be the difference between life and death.

These features help explain why, unlike many other markets, insurance is the overwhelmingly dominant means of payment in the health care market. They also explain why Congress has required that individuals be given emergency care without regard to their ability to pay. As a result, and again unlike other markets, uninsured individuals who are unable to pay directly for needed medical services necessarily shift the cost of those services to others—to health care providers, the government, individuals with insurance, and taxpayers.

In that way, Congress is not creating a market which it then seeks to regulate.  The insurance-based structure of the health care market is already firmly in place. That is why it was well within Congress's discretion to design legislation to operate within, and to address problems posed by, this vast market.

But the insurance market is so complex that addressing one aspect of the market can easily create others problems. For example, one longstanding problem is that the insurance model makes affordable health care unattainable for many individuals already in poor health.  Congress responded by prohibiting insurers from denying coverage or charging higher rates based upon an individual's pre-existing health conditions. Yet given that prohibition, one could reasonably conclude that currently healthy individuals might forgo the purchase of insurance until they need it. That would undermine the viability of the insurance pool, which depends on payments from currently healthy individuals to finance health care for those who need it, when they need it. In this respect, the individual mandate is intimately connected to, and advances the aims of, the overall regulatory scheme put in place by the ACA.

The same is decidedly not true of the testing hypotheticals raised by members of the Court concerning mandates to purchase broccoli or automobiles: Individuals who wait to purchase such goods until they are needed do not undermine a larger regulatory scheme or shift costs to other consumers of those goods or to any other third party. Nor is the health mandate comparable to a requirement to purchase burial insurance, because no showing can be made that Congress would be responding to any real national problem. These factual distinctions in fact illuminate the narrowness of the ground upon which a decision upholding the mandate should stand.

The purported limit on congressional power favored by the mandate's opponents—between constitutionally permissible regulation of “activity ” and unconstitutional regulation of “inactivity ”—is simply unknown to Commerce Clause jurisprudence, is wholly unworkable, and makes no economic sense. But even if it had any legitimate constitutional purchase, it would be satisfied in the case of the ACA. The overwhelming majority of those subject to the individual mandate are or will be engaged in the economic activity of receiving health care services. For that overwhelming majority, the mandate is a regulation of economic activity.  

It is, of course, possible that the mandate could touch individuals living such isolated existences that they will never seek any health care services. For them, the mandate (if enforced against them) would indeed require an unwelcome purchase. But the Court’s cases have always recognized that Congress legislates on an aggregate, nationwide basis. No person can withdraw himself from the ambit of Commerce Clause-based legislation by arguing that, standing alone, his activity, or that a small group like him, does not substantially affect commerce. Congress is entitled to legislate based upon the aggregated activity of the class regulated. Honoring its longstanding traditions of judicial restraint and respect for the coordinate branches, the Court should not, in the present litigation, allow such hypothetical extreme cases to undermine the constitutionality of the ACA for the hundreds of millions already participating in the interstate health care market.

I recognize that many persons believe the health mandate is very bad legislative policy. But the appropriate judicial response to such a complaint has long been clear. The Court was admirably forthright about the point in its ruling in Munn v. Illinois in 1876: “For protection against abuses by the Legislature, the people must resort to the polls, not the courts.” 

Henry Paul Monaghan is the Harlan Fiske Stone Professor of Constitutional Law at Columbia Law School.

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23 comments

“ But why should the Court be be "applauded for [its] efforts to search for the limits to any principle advanced to uphold the health care mandate of the Affordable Care Act (ACA)"? Isn't the Court supposed to presume that acts of Congress are constitutional and to place the burden of persuasion on the challengers? If the limiting principles are found within the Constitution itself, why should the Court be searching for extrinsic limiting principles, not themselves located in the Constitution? Dhurtado ”

- NR143296

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“ Article I, Section 8 of the U.S. Constitution states, in part: "The Congress shall have Power To...provide for the...general Welfare of the United States;"    Healthcare is clearly providing for the general Welfare.  The health insurance mandate is a regulatory mechanism for providing near universal health insurance to pay for the universal healthcare access that is already being provided through emergency rooms and taxpayer financed clinics around America. ”

- Earlybird1

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“ Because, HR, it's their job. The fact that the matter's in court presumes that challengers with standing have assumed the burden of persuasion. The Court must at least do due diligence to their arguments. ”

- Robert Powell

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“ RP- It is the Court's job to review the constitutionality of legislation, and, if the petitioners can show clearly that the statute is invalid, to declare it invalid. It is not the Court's job to search for ways to invalidate statutes. That is the petitioners' job. Dhurtado ”

- NR143296

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“ As to "burden of persuasion," the the petitioners were deemed to have meet their burden in the lower courts, that have to do so de novo (all over again) in the Supreme Court. That means the petitioners to to show/prove that the legislation is unconstitutional. It is not the government's burden to show the legislation is constitutional. The arguments of BOTH sides deserve due diligence by the Court. Dhurtado ”

- NR143296

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“ Earlybird - the ellipses in your quotation of the Constitution nicely hide your misinterpretation of the document. The clause in question clearly refers to power to levy taxes in order to pay for providing for the general welfare, not to some blanket grant of authority to do whatever they want in the name of the general welfare of the country. That said, Monaghan's piece here is to be commended for its straightforward clarity. I particularly like his explanation of how the broccoli and burial insurance arguments fail. Nicely done. ”

- IowaBeauty

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“ "though" the petitioners ... "they" have to do so :-) ”

- NR143296

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“ Bob how exactly has it been proven that there are challengers with standing? The mandate does not come into effect for two more years and who is harmed by it? Free riders. I would love for a person to come forward and say that they can guarantee that they will never be sick or injured during the time that they do not have insurance, and insurance that they can afford (remember there are also subsidies for the poor). Is there a Constitutional right to free health care if you don't want to buy insurance but can afford it? ”

- blackton

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“ "The Constitution of the United States creates a national government of enumerated and therefore limited powers." In this context, can the government of the United States continue to expand? ”

- Doug12

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“ health insurance will remain a business Doug, not an expansion of government. I think of it as similiar to taking lead out of gasoline or outlawing child labor. Energy production and manufacturing march merrily on. ”

- WandreyCer

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“ Blackton, the court doesn't seem to be too worried about the challengers' standing. I can't answer why they have standing right off the top of my head and save for the anti injunction arguments the first day am not thinking about it. If the all 9 judges are ok with standing, why bring it up or even worry about it? It seems such a side bar. ”

- basman

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“ Well said Wandrey. I'm sure you will agree the government undertakes the responsibility of monitoring compliance as well as enforcement with the terms of the Affordable Health Care Act. ”

- Doug12

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“ What if Congress required insurers to cover pre-existing conditions and, similar to Medicaid, conditioned insurance premium support for low income individuals to those residing in states with state-law mandates that require individuals to purchase insurance. Any constitutional issue with that? Of course, all states would adopt mandates because those that don't would discover that no insurer would be willing to do business in that state. For those who cry extortion, I would point to Medicaid: states don't have to offer Medicaid if they don't want to; they do because poor people get sick, all those hospitals and physicians who treat them would demand payment from somebody, and adopting Medicaid at least shifts much of the cost to the federal government. What these distinctions reveal is that states are an anachronism. That "states' rights" have been used to justify slavery, discrimination, and every other odious behavior is more than ample reason for getting rid of them. The only good reason I can think of for keeping states is college football: who would play in the national championship game if we didn't have states. ”

- rayward

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“ "In this context, can the government of the United States continue to expand?" It's a little unclear what you mean by "context," Doug, but if you mean the clause you cite then obviously the answer is no. However, if by "context" you mean the ACA then it's very difficult to argue that the government is "expanding" when the actual expansion will be structured primarily via a private health insurance market. Had the ACA included a public option as many of us wanted, then the argument today might be somewhat different and your question would have a different resonance. ”

- ironyroad

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“ "Accordingly, troubled members of the Court should be applauded for their efforts to search for the limits to any principle advanced to uphold the health care mandate of the Affordable Care Act (ACA), not made the target of strident and caustic criticism. The Court is a great institution, and its members don’t deserve such abuse." After Bush v. Gore? Does this mean, Professor Monaghan, that, if the court rules against the ACA that you so eloquently defend as entirely constitutional, we can now conclude that it has become a nakedly partisan institution? If not, then when? ”

- timteeter

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“ Paragraphs four and five of this essay are logically flawed. Rather than unpack each statement, I would suggest that every reader review the Brief For Amici Curiae Economists in Support of Respondents Regarding Individual Mandate at 27 et seq. The healthcare market is not unique: not in its need as being unavoidable, not its being unpredictable, not in a purportedly high cost that comes conflating the cost of all consumers of health care or all the uninsured with those who will be exempt from the mandate, and the market can be regulated at the local level, to the extent deemed necessary, through the exercise of the police power. The individual mandate, as the economists' brief explains, is not designed to to protect against cost-shifting, as the above essay claims. Those who are in poor health, older, and unable to buy insurance are (1) exempt from the individual mandate; (2) excepted from the penalty under the inidvidual mandate; or (3) covered by Medicaid. As counsel responded to Justice Kennedy's last question, the healthy young people who are compelled to buy insurance under the mandate, have to buy the full coverage of the bronze plan. They are prohibited from buying merely catastrophic insurance. the purpose of the individual mandate is to force young people to pay money to insurers to mitigate the large premium increases that attend to the vast mandated increased coverage. The United States is milking the young for the benefit of the old in so many ways; this is just one more. The generalities contained in this essay are flat out wrong. We do not live in a world of the hypothetical ACA, but rather in the real ACA, with real statutes with real consequences. ”

- ArthurFF

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“ Taking into account, however, that the same young people will consume more health care when they are older, then it's not "milking" but creating a generational contract that protects all people in a rolling process. I guess the fact that young workers have to pay social security contributions means they are just being milked too -- after all, young people don't receive social security! In any case, some of these arguments seem to imagine that "young people" consist entirely of healthy males. The entire world of natal care just falls off the edge in this perspective on things. Women? Babies? Small children? Nah, doesn't count. ”

- ironyroad

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“ As long as you are willing to concede that the individual mandate is not about cost-shifting, then the principal public justification for its constitutionality just disappears. I explained the bar on young people taking out catastrophic care to a liberal physician, who is inclined to support the ACA, and he was surprised and not pleased. He thought that the individual mandate was designed to prevent cost-shifting. He knows better now. Young women can be healthy, too, but they are barred as well from obtaining catastrophic care. Your last paragraph does not track. It certainly has nothing to do with the individual mandate, the availability of healthcare to persons outside the individual mandate, the actuarial function (and operation) of the individual mandate, and the constitutionality of the individual mandate. That, after all, is the issue before the Supreme Court. ”

- ArthurFF

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“ "The United States is milking the young for the benefit of the old in so many ways; this is just one more. The generalities contained in this essay are flat out wrong. We do not live in a world of the hypothetical ACA, but rather in the real ACA, with real statutes with real consequences." And the consequences are emphatically a political decision. This is why economic policy is made by elected officials in our democracy, not by judges. The have no relevant expertise and they are not democratically accountable for the outcomes, in any direction. _______________________ "As long as you are willing to concede that the individual mandate is not about cost-shifting, then the principal public justification for its constitutionality just disappears." What could the mandate possibly be other than a shift of costs from some group of people to some other group of people, leaving aside who they are? Again, this is why it is not the business of judges and surely not prohibited by the Constitution. ”

- roidubouloi

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“ "The Constitution of the United States creates a national government of enumerated and therefore limited powers." Doug and irony, the foregoing clause does not appear in the Constitution, if that is what is implied. In any event, "limited"government does not mean that government can never expand. Even if it did mean that (remember, the Constitution doesn't say it), that train left the station two centuries ago. Dhurtado ”

- NR143296

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“ ArthurFF's problem is that he is looking at one problem and ignoring the other. "For example, one longstanding problem is that the insurance model makes affordable health care unattainable for many individuals already in poor health. Congress responded by prohibiting insurers from denying coverage or charging higher rates based upon an individual's pre-existing health conditions. Yet given that prohibition, one could reasonably conclude that currently healthy individuals might forgo the purchase of insurance until they need it. That would undermine the viability of the insurance pool, which depends on payments from currently healthy individuals to finance health care for those who need it, when they need it." If insurance companies must insure those who need it, then everyone must buy insurance. Otherwise the rational consumer will wait until she get cancer and then by insurance. The individual mandate is necessitated by the mandate of the insurance companies. Or would you rather just have the government pick up the bills out of general revenue? Or--gasp--socialized medicine? Conservatives dreamed up the mandate idea to avoid these fates worse than death. Further, young people get sick too. It is a very unwise young person who skimps on medical insurance. If people needed broccoli on an emergency basis and grocery stores were required to provide free broccoli to whoever could not pay for it, then broccoli insurance would be constitutional. But they aren't and it ain't. ”

- Vekert

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“ Somebody send this to Justices Kennedy and Roberts. ”

- bjones

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“ This is the most cogent and obviously correct defense of Obama's healthcare reform and particularly the mandate that I have seen anywhere, without the blather that characterizes most discussions of this not-very-difficult case. It puts the morons in the Justice Department to shame. Too bad there's no way to get a legalized (but not too much) version of this piece before the Court. Are any of you reading this, fellas (and ladies)? ”

- mlottman

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