As Jonathan notes below, I was invited to write a piece on “Is health-care reform constitutional?” for the Outlook opinion section of today’s Washington Post. For the home page, the editors picked the pithy title, “Commerce Claws.” Here is how it begins:
With the House set to vote on health-care legislation, the congressional debate on the issue seems to be nearing its conclusion. But if the bill does become law, the battle over federal control of health care will inevitably shift to the courts. Virginia’s attorney general, Ken Cuccinelli II, has said he will file a legal challenge to the bill, arguing in a column this month that reform legislation “violate[s] the plain text of both the Ninth and Tenth Amendments.” On Friday, South Carolina Attorney General Henry McMaster and Florida Attorney General Bill McCollum announced that they will file a federal lawsuit if health-care reform legislation passes. Will these cases get anywhere? Here is a guide to the possible legal challenges to a comprehensive health-care bill.
As you may expect, it is difficult to present both sides of complicated constitutional arguments in an 800 word essay, even when it became expanded to 1100 words. The idea was to present readers of the Washington Post with a summary of arguments to be made. Now that the highly questionable “deem and pass” procedure has been abandoned, the argument that seems most plausible to me concerns the limits of the commerce power. [I was just told by my editor that the print edition did not reflect the changes I made to the piece when the "deem and pass" rule was abandoned, although the on-line version is correct. Too bad.] The argument that seems least plausible to me is based on assertions of state sovereignty by state legislatures. For state politicians seeking to oppose this legislation, the strategy with the greatest likelihood of success is that enough state legislatures use their Article V power to propose an amendments convention to limit congressional power over health care that Congress is induced to repeal the bill. One argument I refrained from analyzing due to space was a challenge based on the Due Process Clause of the Fifth Amendment (or, for originalists, the Ninth Amendment). Any such argument would depend on the minutia of the operation of the ultimate scheme.
As I note at the end, to assess the constitutionality of this or any other measure we need to separate three distinct inquiries that are often run together:
Ultimately, there are three ways to think about whether a law is constitutional: Does it conflict with what the Constitution says? Does it conflict with what the Supreme Court has said? Will five justices accept a particular argument?
When all three of these considerations point in the same direction, we can be supremely confident in the result. When any of the three point in different directions, our confidence that we know the outcome should be tempered and the potential for a “surprise” decision increases.
With respect to the likelihood of gaining five votes for a constitutional challenge to the bill, I reminded readers of Bush v. Gore, which has already evoked one irate email from a reader.
Re: “Is health-care reform constitutional?” Washington Post 3/21. Your suggestion that “five justices may have perceived that long-established rules were being gamed for purely partisan advantage”, i.e., that there was some hint of nobleness about the process, is unacceptable. Have you read the opinion?? None of the Injustices even made such a claim. As confirmed later by an article in Vanity Fair, they simply wanted Bush to be President, and installed him in the greatest threat to our Constitution ever. I challenge you to go over Bush v. Gore with me, point by point.
I predict there will be more. Bush v. Gore remains a sore point for many Americans. But not as many, I suspect, as will remain upset about the passage of health care legislation after statements such as these.
But we shall see. My point is not that statements such as these should affect an analysis of the constitutionality of the bill; but that a political climate such as this–like the climate surrounding the 2000 election–could affect the openness of some justices to constitutional arguments they might otherwise be inclined to reject.