A clear constitutional choice from two ObamaCare rulings

One of the key legal arguments in the various ObamaCare lawsuits concerns the “individual mandate.” Can Congress require citizens to buy a good or service under its Commerce Clause power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”? Does the specific decision not to purchase health insurance constitute an “economic activity” that Congress can regulate?

This week, we got an answer from U.S. District Judge Gladys Kessler that contradicts the determination made last month by U.S. District Judge Roger Vinson. While the Supreme Court may not directly compare the two judges’ respective reasonings when it eventually decides the fate of the health-reform law — and I’ll note again that the “score” on the district- or appeals-court level doesn’t matter in the end — I think the following passages get to the heart of the conflict.

First, Kessler’s conclusion, which pretty well tracks the Obama administration’s argument:

It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not “acting,” especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.

Now, what Vinson had to say about this argument:

If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power” [the quote comes from the Supreme Court's Lopez ruling], and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended. … In Lopez, the Supreme Court struck down the Gun Free School Zones Act of 1990 after stating that, if the statute were to be upheld, “we are hard pressed to posit any activity by an individual that Congress is without power to regulate.” If some type of already-existing activity or undertaking were not considered to be a prerequisite to the exercise of commerce power, we would go beyond the concern articulated in Lopez for it would be virtually impossible to posit anything that Congress would be without power to regulate. (emphases original to the Vinson ruling)

I know it is difficult to do so, given the attention we’ve all paid to the health-reform debate, but try for a moment to imagine that these arguments were being made about a different law — one in which the federal government required every citizen to purchase, say, a gym membership in order to keep themselves in better health, on the grounds that this will lead to less obesity and thus lower health-care costs across the nation.

In that case, which of these arguments would be more in line with the Constitution?

– By Kyle Wingfield

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116 comments Add your comment

Intown

February 24th, 2011
11:12 am

Kessler is more consistent with the Constitution. The power to regulate commerce is broad and deep. I would also disagree with Vinson’s characterization that a health care free rider is failing to engage in commerce.

As a practical matter, if this individual mandate gets struck down, the only alternative to the status quo is to go to a single payer health system aka – Government Run Healthcare. So, choose your poison Repubs.

PatDowns

February 24th, 2011
11:12 am

Kyle Wingfield

February 24th, 2011
11:42 am

Ok, Intown, so which failures to engage in commerce would be off-limits? Where’s the line? Who gets to decide which inactivity is economically important and which one isn’t?

Andy

February 24th, 2011
11:51 am

For those who choose to opt out of an insurance plan, have a serious illness or accident, and show up at a hospital emergency room for care, should these people not bear some responsibility for the costs of that health care? Isn’t a fine a recognition that these costs are going to be incurred by the state, and there needs to be some way to offset those costs?

that's goofy

February 24th, 2011
11:51 am

Kyle – I like this one. Wonder how long until this spirals into left vs right?

I’ve looked at this – I’ve read it multiple times. I’m still conflicted. Buying a gym membership and improving your health is good for the individual and the rest of us. Better health reduces cost. But… we are Americans – we can (and do) choose to be fat and sedentary if we want to.

The Constitution is designed to protect us from the government and in some cases ourselves.

I’m going to get a large milkshake and think about this.

Kyle Wingfield

February 24th, 2011
11:56 am

that’s goofy: I disagree on the part about protecting us from ourselves. I don’t think that’s the point of the Constitution. If you don’t have the freedom to make a mistake, you aren’t very free.

There are ways to deal with the problem of free riders without resorting to such a pervasive law.

Andy

February 24th, 2011
12:01 pm

Kyle, So how would you deal with freeloaders?

Mr_B

February 24th, 2011
12:03 pm

Kyle: You answered your 11:42 with your quote from the Constitution: Congress gets to decide, which they have done. IF Congress changes its mind, it is free under the Constitution to amend or repeal the law as it stands.

Mr_B

February 24th, 2011
12:06 pm

This isn’t about protecting us from ourselves. This is about protection from others who want a free ride in the healthcare marketplace that inevitably crosses state lines.

Intown

February 24th, 2011
12:08 pm

Congress decides Mr. Wingfield. Congress.

Kyle Wingfield

February 24th, 2011
12:13 pm

Andy: It depends on whether you mean from a pre-existing condition standpoint, or the standpoint of not having insurance but not being denied care.

If the former, you could do a lot of things short of the mandate: One of them would be to require insurers to accept anyone who can provide proof of immediate prior coverage. Another would be to allow smaller employers, or the self- or unemployed, to form/join national risk pools that would mimic the larger risk pools that large employers can form under their self-insuring power under ERISA. (When I joined the AJC’s insurance plan, no one asked me whether I or my wife or child had a pre-existing condition, because Cox’s risk pool is large enough that it doesn’t really matter.) Those are some examples, not an exhaustive list.

If the latter, you can deal with it from a practical standpoint — have more urgent care clinics near ERs, and have the vast majority of uninsured people treated there, if only to lower the cost. Change the way the tax benefits of health insurance flow. Improve price transparency among health-care providers so that the market mechanism can work better to bring down the price of care, which is the root problem here anyway. Again, just a few examples, most of which I’ve written about before.

Some of these may be included in ObamaCare, but all of them could be implemented without the additional bureaucracy, cost, taxes and centralized control that are also features of that law.

Kyle Wingfield

February 24th, 2011
12:15 pm

Mr_B and Intown: And there is no check on Congress? Its power is absolute?

There is no historically accurate way you can argue that the Constitution created such unlimited power for Congress, or for any branch of the federal government.

gs

February 24th, 2011
12:17 pm

Many people see this new law as a stepping stone to socialized medicine, and in many ways it is a precursor. Our medical system has grown over-bloated much like the housing market and is in need of correction. My only qualm is that I am steadily hurdling towards retirement age, and I don’t have a good feeling about the ultimate outcome of health care in my golden years-lol. I would like for we as a people to quit fighting and quibbling about inevitable change, and start crafting a more acceptable end result.

CJ

February 24th, 2011
12:18 pm

First of all, the decision not to purchase insurance means higher insurance premiums for those who do purchase insurance and higher taxes for everybody since Ronald Reagan signed legislation requiring emergency rooms to treat all comers regardless of ability to pay. The Republicans are right when they say that we have a national health insurance program that covers everybody–the most expensive and inefficient national health insurance program in the world. (By the way, gym memberships don’t reduce health care costs. Exercise does. You don’t need a gym membership for that.)

But let’s be clear. Republicans do not oppose health insurance mandates because of the Commerce Clause. They oppose these specific mandates because they were passed by a Democratic Congress and Democratic President. How do I know this?

1. They were for health insurance mandates before they were against them: http://www.politico.com/livepulse/0909/Grassley_backtracks_on_individual_mandate.html

2. Republicans continue to support mandates via their efforts to privatize social security—amounting to mandates that we put save with the financial institutions that nearly took us out in 2008.

3. Senate Democrats have offered to work with Republicans to replace the mandates with alternatives such as an open enrollment period combined with tax credits for purchasing insurance. Senate Republicans aren’t interested in talking and House Republicans have no such legislation under considersation. Why not? Because this isn’t about the mandates. It’s about bringing Obama down.

dl

February 24th, 2011
12:22 pm

How about requiring a weigh-in to recieve food stamps??

CJ

February 24th, 2011
12:26 pm

I meant to say that we had the most expensive and inefficient national health insurance program in the industrialized world.

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Jeff in Michigan

February 24th, 2011
12:28 pm

First, none of you are constitutional scholars least of all the author. This whole issue is a red herring. The issue has nothing to do with healthcare and everything to do with the limits on Congressional power. In this case, the power of Congress IS deep and broad. The limit to this power isn’t the Supreme Court. It is the voting public. That’s why all the hysteria just more Republican fear mongering. Congress CAN require everyone to go to the gym or face a fine, but would only be able to do so if the public agreed that this was in best interests of the country. The majority of voters DO agree that everyone should have health insurance. THAT is why Congress can mandate it.

Jeff in Michigan

February 24th, 2011
12:35 pm

As far as Kyle’s alternative plan, convince a Republican to submit it and get it scored by the CBO and see how it compares to the savings that the current plan delivers. THEN we can debate the merits. The reality, though, is that the Republicans haven’t produced an alternative. That’s because they are in the pockets of the big money interests in healthcare that don’t want any change.

Andy

February 24th, 2011
12:36 pm

Kyle, if you are unemployed, you do not have the money to buy a health insurance plan, so it doesn’t matter what the risk pool is like.

As for urgent care, funneling people into urgent care makes a lot of sense, but if you are avoiding going to a doctor because you cannot afford it, a potential simple illness may well have escalated into something much more serious and much more expensive to treat. If society’s goal is to lower overall health care costs, then it would make sense to treat illnesses as early as possible. An example would be dental care; much better to get preventive care than to have to remove or replace all of your teeth or worse.
Yet republicans just gutted the community health center budgets, which seems to be equivalent to an urgent care facility. Seems very myopic; you may be cutting costs in the short run, but exploding costs in the long run.

Just look at the problems associated with Grady Hospital. They are in trouble because they have to provide indigent care to Fulton and Dekalb counties. They can reorganize all they want, but unless they address indigent care, they will always have to reorganize every few years. Health care reform attempted to address these issues, but all republicans are able to see are bureaucratic foul ups.

Jefferson

February 24th, 2011
12:40 pm

Single payer is the way to go. Best thing since sliced bread. What are we waiting for, anything less is backing up.

Idle Remarks

February 24th, 2011
12:42 pm

Outlaw ALL health insurance and let the free market (doctors, clinics, hospitals, etc.) determine costs. They WOULD go down, and we might all be better served.

Sam

February 24th, 2011
12:45 pm

The courts have divided along “party” (actually ideological) lines where the currently seated supreme court justices will limit rather than expand congressional authority over states and individuals. Only question is whether Virginia ruling is the model (strike down mandate, uphold the law) or Florida ruling prevails (the mandate is the heart of the law, so they’re both struck down.) Intown is right about government option but wrong about it being “practical.” There’s no way it passes the currently seated Congress.

Final outcome prediction on covered lives:
What survives: 16 million members being added to Medicaid (costs $82 – $130 billion) in theory, but in fact, they become extremely hard to find and enroll.

What dies: 16 million individuals forced into state insurance exchanges for subsidized premiums (reduces health care reform costs by over $80 billion in subsidies.)

Jeff in Michigan

February 24th, 2011
12:52 pm

This is a no-brainer on the supreme court. They have consistently upheld this aspect of Congressional power and will uphold it this time too. The court does not want to weigh in on every law that Congress passes, which is what would happen if they struck down this one. They also don’t want to empower states and, by implication, state courts to over rule the federal government, and by implication, the Supreme Court. It’s not going to happen.

Mr_B

February 24th, 2011
12:54 pm

Kyle: I’m not suggesting that Congress powers are unlimited.What I am claiming that under the ICC clause, Congress does have the right to regulate health care. The check on Congress comes every 2 and 6 years. In 2008, the electorate decided that health care reform was a valid poltical consideration. In 2010 they indicated that some of the electorate didn’t think so. My guess is that in 2012, the pendulum will have swung toward the center again, as the gloom and doom scenarios of the health care opponents fail to materialize; but I’ve been wrong before.

Critical Thinker

February 24th, 2011
12:54 pm

I agree with the author. The few goodies that Obamacare has (i.e. closing the donut hole, covering pre-existing conditions, etc.) could have been done without a massive, intrusive, bill that strips our individual freedoms. If you have any doubt that the bill is intrusive…..just read it. It uses the phrase……” the HHS secretary SHALL” hundreds of times. Do you really want the HHS secretary deciding what is ” acceptable ” health care coverage for you ? Obamacare was passed by one party in a nefarous way in the dark of the night. When Medicare was passed over 50 years ago, it had bipartisan support (unlike Obamacare). Obamacare won’t stick for the long haul….there are too many elements in the law that just don’t make any sense. If Obamacare was such a great deal, then why have over 700 waivers been granted to businesses and unions that don’t want any part of it ?

ByteMe

February 24th, 2011
12:59 pm

(When I joined the AJC’s insurance plan, no one asked me whether I or my wife or child had a pre-existing condition, because Cox’s risk pool is large enough that it doesn’t really matter.)

This is not true. You should shop for insurance some time, Kyle.

My little two-person company — me and my wife are the only employees — were able to obtain health insurance whereas Mrs. ByteMe cannot get it on her own because of pre-existing conditions. It’s not about the size of the “risk pool” for your company, that just controls the cost.

The game is rigged to make it easier for employers to buy insurance (and overpay for the insurance company to cover pre-existing conditions) whereas if you don’t get insurance from your employer, the cost is lower, but they are strict about pre-existing conditions.

Critical Thinker

February 24th, 2011
1:10 pm

I find it interesting that when the administration was trying to shove the Obamacare law through they said ” Oh this is not a tax. ” Now that they want to try and convince the courts that it meets constitutional muster, they have flip-flopped and argue that…..” Well this is a tax and falls under the commerce clause. ” So which is it ?? The Supreme Court is not stupid. You can’t force someone to buy a private product for INACTIVITY or just ” being. ” The Commerce clause doesn’t apply here.

John

February 24th, 2011
1:13 pm

@Kyle

“If the latter, you can deal with it from a practical standpoint — have more urgent care clinics near ERs, and have the vast majority of uninsured people treated there, if only to lower the cost.”

Who will pay to build these urgrent care clinics and the medical costs for those receiving care from these clinics?

What if

February 24th, 2011
1:30 pm

I’m fine with getting rid of the health care law that took many decades by both Republican (not to be confused with conservative) and Democratic leaders to finally pass. Such short memories. I’m fine with it as long as hospitals and doctors offices are allowed to refuse service to the uninsured so I don’t have to pay for their care with my medical bills. Just let ‘em die. Your solution, Kyle?

Linda

February 24th, 2011
1:32 pm

In 1994, when Congress was considering a universal health care plan formulated by then-First Lady Hillary Clinton, the CBO studied the plan’s provision that would have forced individuals to buy health insurance and determined it was an unprecedented act.

The CBO stated: “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.”

The health care mandate appears to be the first attempt in the history of the US that Congress is forcing us to buy a product! Kessler is correct that forgoing health insurance could have “serious economic & health consequences” but so is not being immunized or buying a refrigerator.

jm

February 24th, 2011
1:35 pm

good column kyle. keep fighting the good fight.

Jeffrey Burk

February 24th, 2011
1:41 pm

Enter your comments I support destroying ObamaCAre with armed violence

Jeffrey Burk

February 24th, 2011
1:46 pm

those of us who who hate this pigslop whould overthrow ObamaCare in the sameway MiddleEast protestors are overthrowing their goverments…with outright rebellion

Rich

February 24th, 2011
1:50 pm

Hey Kyle: This whole argument is really stupid. The penalty for not having health insurance under the law is not JAIL, but rather financial. So the government says, if you do not have health insurance you have to pay a penalty. Please tell me this…..what is the practical and functional difference between this and permitting a tax benefit for those who purchase a house. Isn’t that essentially penalizing those who choose to rent? Sure it is. So the governments says if you rent, you are penalized financially. It is EXACTLY the same thing. NO DIFFERENCE. So if your argument is true, you must be against the home mortgage deduction, right? Is it unconstitutional??? The government, for many moons, has sought to influence people’s purchasing habits in favor of some and against others. This is all that is happening here, and there is absolutely nothing unconstitutional about it at all. This broccoli stiff is just about as STUPID as it gets, and any JUDGE who relies on this kind of reasoning in a legal decision should be laughed off the bench!!

Jeffrey Burk

February 24th, 2011
2:05 pm

Well Jeff in Michigan..I hope congress mandates you wear pink panties

Hillbilly Deluxe

February 24th, 2011
2:13 pm

It’s going to the Supreme Court and will settled in a 5-4 decision, most likely. Until then, all these different decisions don’t really matter.

thebob.bob

February 24th, 2011
2:23 pm

We have the most expensive and least fair or effective health care system in the industrial world. There are several models out there to adapt to the USA that would save billions and give better results. Single payer, government funded health insurance will be the result. Do we have to have our Rube Goldberg system completely collapse before we figure it out?

2 Cents

February 24th, 2011
2:31 pm

Government run healthcare is gonna be just as good as government run housing. Sure, go to a single payer system. Let’s see how we are going to like that change. Hey, while we are at it lets have government take over all housing and tell us where we can live. This is a very slipperly slope that I do not think will end well.

This healthcare bill is a monster and it is gonna eat some ppl.

Better reforms could have been put in place:

HSA rollovers
Family member ages increase; extended family added to policy for additional fee.

Critical Thinker

February 24th, 2011
2:33 pm

Judge Kessler’s reasoning is flawed. It is not just a matter of semantics. I could CHOOSE to pay cash for my health care services instead of buying an insurance policy. So therefore, my choice to not have an insurance policy would not cause an economic hardship on others or even myself. In our hospital, we have a patient who is regularly admitted and has never been insured. But he always pays his bills with cash whether he comes into the hospital or the emergency room. Is he harming anyone else by choosing ( whether actively or inactively) not to have an insurance policy ?

Kessler’s opinion also makes the inaccurate assumption that HEALTH CARE is the same as HEALTH Insurance. It is not. I could have insurance and not be able to find a doctor to give me health care. Having an insurance policy does not guarantee that I will improve the health and safety of myself or anyone else. If the commerce clause can force me to buy a private product by just being alive, we are in big trouble. What’s next……a certain type of car or a certain type of clothes ?

Dan

February 24th, 2011
2:46 pm

Thank you critical thinker! The key to having a reasonable discussion about this whole topic is dissassociating health care cost and health insurance. One of the primary problems is people expect their health insurance to cover normal expenditures, there is an expectation that someone else is going to pay the bill, $100 a month would pay for about 2 annual physicals. Any other charge, perscription, xray, extra tests, a visit for the flu or a coold, etc and you are in the black for your health care. The biggest problem is people don’t pay attention to the cost of health services

Cutty

February 24th, 2011
2:54 pm

Funny, you kept score in previous ‘articles’, but not so much now. Interesting.

Cutty

February 24th, 2011
3:05 pm

Winfield- 1/31/11- “We now have two district-court judges who have said the mandate is fine, and two who have said it’s unconstitutional. That means today’s ruling will take away, at least for now, the silly left-wing argument after a judge in Virginia ruled against ObamaCare that the law was somehow on solid footing because two judges were for it and only one was against it.”

Keeping score is what you do, as long as its in you’re winning.

Kyle Wingfield

February 24th, 2011
3:08 pm

As you well know, Cutty, since you went back to the earlier blog post, the very next part of the post read: “That argument was silly because it only takes one case to proceed to the Supreme Court for the high-court justices to rule on the law definitively. And that is, after all, where we are headed eventually.”

It’s called cherry-picking, I think.

Kyle Wingfield

February 24th, 2011
3:12 pm

It’s very telling, Rich @ 1:50, that you consider the failure to obtain an incentive equivalent to a punishment.

But in any case, and I’m already on record saying this, I would favor eliminating the mortgage-interest deduction as part of an overhaul of the tax code that led to flatter, simpler, lower taxes.

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JoJo

February 24th, 2011
3:18 pm

It’s amazing to me that anyone would stand behind her reasoning. You may like and support the healthcare law, but this is a hell of a precedent to set and the ends do not justify the means. Watch what happens when it’s something you don’t support. Your ideologies blind you. Wait and see, wait and see.

Cutty

February 24th, 2011
3:30 pm

Oh so you were talking about the ’silly argument’ of keeping score and not the silly left-wing argument? Yeah ok. May I interest u in some beachfront property in Indiana?

killerj

February 24th, 2011
3:33 pm

Neither,both are politically motivated to control thought and actions,your freedom is being taken away and you don,t even realize it.Go Tea Party.

joe

February 24th, 2011
3:35 pm

@ Intown- I want no part of idiotic congress deciding for me, or anyone in public sector for that matter. Their way of thinking is totally warped, replacing personal responsibility with a one-size fits all mentality. That’s why the USA is on a downward slide with no end in sight…well, at least until 2012.