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Professor Bartrum discusses constitutional nature of health care reform

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Professor Ian Bartrum

It has been nearly a year since President Obama signed into law the most important piece of civil and social rights legislation since the 1960s. The Patient Protection and Affordable Care Act not only offers responsible solutions to our impending national health care crisis, it also protects the right to adequate health care for our most physically, financially and politically vulnerable citizens. But just as some obstructionists challenged the constitutionality of the Civil Rights Act in the 1960s, there are those today who hope they can get the courts to revisit an argument that they lost in the political branches.

Focus on Florida ruling

The legal debate has taken on more urgency in the wake of Florida District Court Judge Roger Vinson’s decision invalidating the entire 2,500-page law based on a single provision known as the “individual mandate.” Following Vinson’s ruling, Republicans quickly called for the Supreme Court to expedite its review – they not only want the law invalidated, they want it done now. A cynic might see this as a last-ditch effort to strike the law down before people realize how much it improves their lives. Whatever the motivation, those who would stand in the way of health care reform are wrong on both counts: The act is constitutional, and expedited review would be a radical and unwise decision for the court.

The “individual mandate” requires those without health coverage through their jobs, who are above the federal poverty line, either to buy a minimum level of health insurance – at a rate not more than 8 percent of their monthly income – or to pay a fairly small tax. So in practical terms, the mandate is not all that onerous; but it is critically important. Because the law prevents insurers from discriminating against people based on pre-existing conditions, it must ensure that people do not simply wait until they get sick to buy coverage. But it’s clearly not practical effects that matter to health care opponents; they see this as a political opportunity to revive a battle over the scope of congressional power that ended nearly a century ago.

Two arguments against mandate

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In particular, opponents say the mandate exceeds Congress’s authority to regulate interstate commerce. The objections are of two kinds. First, some argue that what Congress is regulating is not commerce. While they concede that, since 1937, Congress has enjoyed broad authority to regulate economic activities that substantially affect interstate commerce, they claim that the mandate regulates inactivity rather than activity – it forces us to take an action rather than regulating an action we have already undertaken. Others argue that the mandate is not a regulation of commerce: that unlike the power to “raise” an army, the power to “regulate” commerce does not include the authority to require action. Neither position stands up to serious scrutiny.

Congress quite regularly targets “inactivity” in exercising its enumerated powers, and there is no inherent restriction within the word “regulate” that prevents lawmakers from protecting commercial actors (like insurers) from destructive market forces (like insurance free-riders). The history of the early 20th century is compelling evidence of the catastrophic failures that a more restrictive constitutional doctrine may visit upon a post-industrial economy. Nonetheless, there are those out there who would gladly see the court return itself to pre-New Deal infamy.

Don’t hurt democracy

Indeed, some hope the court will do so as quickly as possible. But expedited review is a bad idea for two reasons. First is the court’s reputation and legitimacy as an apolitical branch of government. Second, this is essentially a policy debate, not a judicial debate, and as such it is a question that we are doing our best to work out in various political arenas. To short-circuit this quintessentially American process would do a disservice not just to those without adequate health insurance, but also to democracy itself.