Home -> Law Blog Directory -> Legal Commentary Blogs -> TalkLeft

Legal Commentary

: TalkLeft

Constitutional Challenges To The Health Bill

By Big Tent Democrat

Orrin Hatch and Kenneth Blackwell lead the "intellectual" charge:

First, the Constitution does not give Congress the power to require that Americans purchase health insurance. Congress must be able to point to at least one of its powers listed in the Constitution as the basis of any legislation it passes. None of those powers justifies the individual insurance mandate. Congress's powers to tax and spend do not apply because the mandate neither taxes nor spends. The only other option is Congress's power to regulate interstate commerce. [. . .] It is one thing, however, for Congress to regulate economic activity in which individuals choose to engage; it is another to require that individuals engage in such activity. That is not a difference in degree, but instead a difference in kind. It is a line that Congress has never crossed and the courts have never sanctioned.

Even if this were true (and it is not as the bill's enforcement mechanism is a tax on persons who do not purchase health insurance), Hatch's argument is faulty. While mandates applied to individuals is not an everyday occurence (the differentiation of participation in a federal pension and health insurance system (Medicare and Social Security) is not apparent to me), application of mandates to corporations is quite routine. Hatch would argue that businesses are "choosing to engage" in such activity, but it would be the only time ever Hatch will have made such a distinction. More . . .

In reality, this is all silly talk as no one is going to file a suit against the mandate that gets addressed on the merits. The problem is a result of the limitation of standing. In the 2007 case, Hein v. Freedom from Religion Foundation, Justice Alito wrote:

It has long been established, however, that the payment of taxes is generally not enough to establish standing to challenge an action taken by the Federal Government. In light of the size of the federal budget, it is a complete fiction to argue that an unconstitutional federal expenditure causes an individual federal taxpayer any measurable economic harm. And if every federal taxpayer could sue to challenge any Government expenditure, the federal courts would cease to function as courts of law and would be cast in the role of general complaint bureaus.

So who gets to sue to advocate Hatch's theory? No one. That's who. Hatch's other "constitutional" objections include:

A second constitutional defect of the Reid bill passed in the Senate involves the deals he cut to secure the votes of individual senators. Some of those deals do involve spending programs because they waive certain states' obligation to contribute to the Medicaid program. This selective spending targeted at certain states runs afoul of the general welfare clause. The welfare it serves is instead very specific and has been dubbed "cash for cloture" because it secured the 60 votes the majority needed to end debate and pass this legislation.

Heh. Hatch needs to tell us another one. Unlike the previous argument, one could see a State having standing to challenge these pork deals. But imagine if this one works. Every law has differentiating benefits so the courts would have to determine what parts of legislation are "dirty deals" and which ones are a natural consequence of the effects of legislation. No court would ever dip its toe in such a mess.

Finally, Hatch argues:

A third constitutional defect in this ObamaCare legislation is its command that states establish such things as benefit exchanges, which will require state legislation and regulations. This is not a condition for receiving federal funds, which would still leave some kind of choice to the states. No, this legislation requires states to establish these exchanges or says that the Secretary of Health and Human Services will step in and do it for them. It renders states little more than subdivisions of the federal government

This is Hatch's best argument. Yet his own text - "or says that the Secretary of Health and Human Services will step in and do it for them" - destroys his argument. States are not, in fact, mandated to do anything. they have the option to create exchanges. If they do not, the federal government will. Of course, adopting the House bill would also obviate this argument. Maybe proponents of a national exchange could pretend to take Hatch's argument seriously.

But make no mistake - this is all show. No one is going to seriously challenge the health bill on constitutional grounds.

Speaking for me only

Full post as published by TalkLeft on January 02, 2010 (boomark / email).