Be Careful What You Wish For....

The New York Times offers a variety of arguments on the constitutionality of the healthcare reform bill, doing a reasonable job of representing both sides. The New York Times offered space to the lawyers who are suing to invalidate the individual mandate. Their argument, to me, is interesting as it seems to have at its heart a yearning for the repeal of the New Deal, or more accurately the sweeping expansion of the Commerce Clause in a series of Supreme Court cases that enabled the New Deal. The authors contend,

In a 1942 case involving wheat producers and Gonzales v. Raich , a 2005 case concerning medical marijuana, the Supreme Court upheld federal regulation of purely local economic activities as a necessary part of regulating the indisputably national market in those commodities.

The health care insurance mandate is in no way necessary to Congress’ efforts to regulate the insurance markets. It does not govern how, when and under what conditions insurance may be locally bought or sold as a means of regulating those activities on an interstate basis — as was the case in the wheat and medical marijuana cases.

The insurance mandate applies without regard to any economic or commercial activity, local or national. If Congress can legislate this broadly, then there is in fact no limit to federal power because every aspect of human life can be said — in the aggregate — to substantially affect interstate commerce.

That sounds like a discussion from a Constitutional Law class, in which first year law students debate the wisdom of that 1942 case, Wickard v Filburn. I don't think the sidestep works - the argument that an insurance mandate is not necessary to the effective regulation of insurance markets - as it is beyond obvious that in the absence of a mandate it is not economically feasible for insurers to follow regulations requiring them to end medical underwriting and insure any applicant regardless of their preexisting medical condition. It remains my opinion that the health insurance mandate is a clumsy tool, but if it is deemed unconstitutional what would actually be accomplished by opponents of healthcare reform? We would simply end up with a slightly modified system of taxes and credits to achieve the same end.

Law Professor Randy Barnett rails against the individual mandate,

Imagine if Congress ordered the majority of American households without a firearm to buy a handgun from a private company, and punished their failure to do so with an escalating monetary fine, which it labeled a “tax.” Would the supporters of the health insurance mandate feel the same about the constitutionality of such a measure?

Imagine if Congress passed a bill that allowed you to go into a gun store and, if you claimed to be in need of a gun, required the store to either immediately verify that you did not need a gun or provide you one on credit (or as a present) with no credit check - and that they could be sued for "big bucks" over a "wrongful denial". That would be a lot like how people get emergency care under EMTALA - show up at an emergency room and get treatment until you're medically stable, without regard to your ability to pay.

High numbers of uninsured and underinsured people do affect the quality, availability and cost of medical care available to the rest of the population. Some hospitals don't offer emergency departments to avoid EMTALA, and some in impoverished areas have had to close. As a law professor, Barnett is no doubt aware of the usefulness of rhetorical questions, hypotheticals and reductio ad absurdum to illustrate a point but, in class or out, a bad analogy is a bad analogy. Similarly,

Congress has never before mandated that a citizen enter into an economic transaction with a private company, so there can be no judicial precedent for such a law.

So... the cure is to tweak the nature of the mandate and associated tax? Or is Barnett telling us that all we need to make the healthcare bill constitutional is the implementation of a pubic option? Easy cures... how, in Barnett's view, do they compare to the "disease"?

Barnett also takes an activist view of the Supreme Court:

Now that it has, supporters are betting there won’t be five votes on the court to thwart a popular act of Congress. Another safe bet.

But what if the bill turns out to be supremely unpopular? What if one or both houses of Congress flip parties because of it? What if majorities in Congress favor repeal but are blocked by a Senate filibuster or a presidential veto? Still as confident about five votes?

Last I checked, there wasn't language in the Constitution that authorized the Court to determine whether or not a law was constitutional based upon the latest public opinion poll. I'm not certain what point Barnett intended to make, but his argument reads like continued advocacy for the form of judicial activism "that dare not speak its name" - a continuation of the Reagan/Bush/Bush II brand of conservative judicial activism that seeks to accomplish through the courts that which can't be achieved through the ballot box.

The quibbles that the political right is raising about healthcare reform likely could have been avoided had a mere handful of Republican senators worked to effect healthcare reform, rather than choosing obstructionism. I'm not optimistic that such a bill would have markedly better solutions to the individual mandate or tax structure behind the bill than the one that passed, but it's at least theoretically possible. Even now, a more mature approach would be to propose ways to fix the bill's defects, real and imagined. In the long run that would also be more effective than pointing to those same (real and imagined) defects in an effort to undo reform, while seemingly blind to the fact that those defects can be fixed in ways you'll like even less than the status quo.