Constitutional Challenges to Health Care Reform: Florida, et al. v. HHS and Virginia v. Sebelius

by Deepak Gupta

A few minutes after the President signed the Patient Protection and Affordable Care Act today, Virginia Solicitor General Duncan Getchell left his office and walked across the street to the federal courthouse in Richmond, where he filed Virginia's constitutional challenge to the new law. 

You can read the seven-page complaint in Virginia v. Sebelius here. It's not a model of legal writing, but it does have the virtue of being concise. It begins with a block quote from a hastily passed state statute affirming the right of all Virginians to choose not to maintain health insurance coverage. Unless I'm missing something, that statute is nothing more than a legally irrelevant political stunt.  The complaint goes on, however, to articulate what I take to be the only serious legal challenge to health care reform -- that the individual insurance mandate goes beyond Congress's Commerce Clause power.  Relying on United States v. Lopez and United States v. Morrison, Virginia appeals to history:

“It has never been held that the Commerce Clause … can be used to require citizens to buy goods and services. To depart from that history to permit the national government to require the purchase of goods and services would deprive the Commerce Clause of any effective limits ..."

This argument has some rhetorical force. It's also rooted in a radical conception of individual liberty that one can imagine attracting some judges -- why should I have to buy insurance simply as a condition of being alive? I'd prefer to live in a cabin and avoid any obligations to society -- but it's hard to square with existing law. In particular, it's difficult to reconcile the  argument with Gonzalez v. Raich. As with marijuana, individuals' decision to purchase health insurance can have a “substantial effect on supply and demand in the national market for that commodity." Id.; see also United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533 (1944) ("No commercial enterprise of any kind which conducts its activities across state lines has been held to be wholly beyond the regulatory power of Congress under the Commerce Clause. We cannot make an exception of the business of insurance."). Even smart libertarians agree that the argument is exceedingly unlikely to succeed.

Down in good ole Tallahassee this afternoon, Florida AG Bill McCollum filed a 22-page complaint on behalf of himself and the AG's of 12 other states (South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Michigan, Colorado, Pennsylvania, Washington, Idaho, and South Dakota). The Florida suit, whose architect is David Rivkin of Baker Hostetler in D.C., echoes Virginia's challenge to the individual mandate.  It also raises two arguments that have even less chance of success: (1) that the legislation violates the Tenth Amendment's anti-commandeering principle, and (2) that the penalty on uninsured persons is a capitation or direct "tax" that is not apportioned among the states according to census data, in violation of Article I, section 9 ("No Capitation, or other direct Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken."); see Eisner v. Macomber, 252 U.S. 189, 206 (1920).  Huh?

Comments

[coach sale]

We’re always on the go trying to accomplish so much, aren’s we? Getting groceries, cleaning the house, mowing the lawn - there’s always something. It’s so easy to get caught up in everyday life that we forget how simple it can be to bring cheer to ourselves and others.

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Thanks for keeping this important issue in the limelight, where it should be.

Dave Oedel

[Steve Horwitz]

Support for the consitutionality of mandatory insurance can be analogized to "Fair Share" litigation, where the Supreme Court has turned backed First Amendment challenges to compulsory payments to a labor union as exclusive bargaining representative. The Supreme Court's decision in Communications Workers v. Beck, 487 U.S. 735 (1988, summarize the Supreme Court line of opinions:

"Congress intended to prevent utilization of union security agreements for any purpose other than to compel payment of union dues and fees. Thus Congress recognized the validity of unions' concerns about 'free riders,' i. e., employees who receive the benefits of union representation but are unwilling to contribute their fair share of financial support to such union, and gave unions the power to contract to meet that problem while withholding from unions [*28] the power to cause the discharge of employees for any other reason." Radio Officers v. NLRB, 347 U.S. 17, 41 (1954."

"'In Machinists v. Street, 367 U.S. 740 (1961), the Court concluded "that § 2, Eleventh contemplated compulsory unionism to force employees to share the costs of negotiating and admini-stering collective agreements, and the costs of the adjustment and settlement of disputes," but that Congress did not intend 'to provide the unions with a means for forcing employees, over their objection, to support political causes which they oppose.' 367 U.S., at 764. Construing the statute in light of this legislative history and purpose, we held that although § 2, Eleventh on its face authorizes the collection from nonmembers of "periodic dues, initiation fees, and assessments . . . uniformly required as a condition of acquiring or retaining membership" in a union, 45 U. S. C. 152 . . .'"

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