Legal Current

Guest post from William J. Rich, professor at Washburn University School of Law and author of Modern Constitutional Law 

Will courts reject the Patient Protection and Affordable Care Act?  Only if ideology trumps rationality.           

In 2005, Justice Scalia explained that “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.” And in 2010, a majority upheld federal confinement of “sexually dangerous persons,” noting that the Necessary and Proper Clause provides “broad power to enact laws that are ‘convenient, or useful’ or ‘conducive’ to the authority’s ‘beneficial exercise.’” The test is “whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.” 

With minimal regard for this precedent, a Florida judge, Roger Vinson, concluded that Congress lacked authority to enact an individual mandate to purchase health insurance. Because he found that provision essential to the total design of the law, and therefore not severable, he declared the entire act invalid. Judge Vinson’s distinction between what is “essential” and what is “necessary and proper” appears to be based upon his belief that an individual mandate conflicts with the “spirit” of the Constitution. 

A prior generation of Americans experienced that spirit. Thus, challengers emphasize an individual “liberty interest” in not being required to enter into a contract for health insurance; they characterize the choice of direct payment for health care rather than insurance as “inactivity” and thus not subject to regulation. Analogous arguments prevailed a century ago and these challengers would resurrect the libertarian vision of the Constitution found during the “Lochner era” of the Supreme Court, but subsequently denounced and rejected. 

If this were not enough, other enumerated powers of Congress also underlie the fee imposed on those who fail to purchase health insurance. The Taxing Power is most obvious, but some reject basing the individual mandate on congressional taxing authority because Congress used the term “penalty” instead of “tax” when describing that fee. To again use Justice Scalia’s words, judges should not be “faked out” by this choice of labels when there is “not a dime’s worth of difference” between the alternatives. 

The Bankruptcy Clause further empowers Congress to provide a financial incentive for purchasing health insurance. Prior to enacting health care reform, Congress heard extensive testimony on the link between lack of health insurance and personal bankruptcies, with reports that more than half of all bankruptcies are due at least in part to medical expenses. Just as the Bankruptcy Clause supported extension of redemption periods in the 1930’s, today the insurance mandate provides a rational means of reducing the devastating effects of bankruptcy. 

If it only takes a lack of indistinguishable precedent to strike down health care reform, then judges seeking that conclusion will declare the law unconstitutional. But if judges give Congress the traditional deference to decide whether the end is “legitimate,” and the means are “rational,” then health care reform survives constitutional scrutiny. 

If judges were umpires, this would be a strike down the middle.