This article first appeared in the St. Louis Beacon, March 23, 2010 - If the U.S. Supreme Court were to strike down the new health-care law, it would have to reverse the modern interpretation of federal power that has existed since the Great Depression. Such a judicial counter-revolution could result in the kind of confrontation between the court and the president that occurred during the New Deal.
Under the prevailing view of federal power, Congress has the authority to enact the new health law based upon its power to regulate interstate commerce and to tax and spend for the general welfare of the nation, legal scholars say.
If the Supreme Court continues to hold that view, then the lawsuit filed by 13 states this week would fail and state legislation opting out of the law would be trumped by federal power. The Constitution's Supremacy Clause invalidates state laws and constitutional provisions contrary to federal law. That would include state constitutional amendments like the one that Sen. Jane Cunningham, R-Chesterfield, is pushing in the Missouri Legislature to allow people to opt out of the federal mandate that requires individuals to purchase health care or pay a tax penalty.
The powerful commerce clause
The Commerce Clause is the strong right arm of federal power. It not only enables Congress to regulate interstate commerce but also commerce within a state that has an impact on the stream of national commerce. In fact, it was the Commerce Clause that provided the constitutional basis for upholding the Civil Rights Act of 1964. The court found that the law applied to Ollie's Barbecue, a family-owned restaurant in Birmingham, Ala. that was 11 blocks from the nearest interstate.
The 239 bushels of wheat that Roscoe Filburn grew on 11.9 acres of his farm in Montgomery County, Ohio, during the 1940s and the six marijuana plants cultivated by Diane Monson earlier this decade for her medicinal needs explain why Congress has such broad power under the Commerce Clause.
Filburn bristled at the Depression-era regulations of the Agricultural Adjustment Act, which set a wheat production quota to avoid excess supplies and low prices. Before Uncle Sam intruded upon his life, Filburn raised a crop of winter wheat on his 23 acres. He sold part of the wheat and used the rest for home consumption and to maintain a herd of dairy cattle and a poultry and egg business. In 1941, the feds told Filburn he could produce wheat on just under half of his 23 acres. He went ahead and planted all the land and went to court claiming that the home-consumption of a trivial amount of wheat couldn't be touched by Congress' power to regulate interstate commerce. But the Supreme Court disagreed.
A decade earlier, Filburn probably would have won. The Supreme Court initially struck down key portions of the New Deal leading to a confrontation with President Franklin D. Roosevelt who tried to pack the court with more like-minded justices. Roosevelt's court-packing plan failed but one justice changed his mind -- the switch in time that saved nine, it was called -- and the court began to uphold New Deal legislation exerting broad national power. By the time poor farmer Filburn made it to the court, Roosevelt had reshaped it into an agreeable body recognizing broad national power.
The court said that even a small amount of wheat consumed at home could affect the stream of commerce. In describing Congress' broad commerce powers, the court harkened back to the decisions of Chief Justice John Marshall who "made emphatic the embracing and penetrating nature of this (commerce) power by warning that effective restraints on its exercise must proceed from political, rather than from judicial, processes."
Marshall, the first important chief justice, had recognized broad power for Congress to enact laws "necessary and proper" to the exercise of its powers, especially it power to regulate interstate commerce.
Monson's pot case came to the court in 2005 in a different context. The Depression was a distant memory and the Rehnquist court had been cutting back on Congress' commerce powers by ruling it could not regulate such subjects as guns in schools and how universities handled cases of violence against women. Many legal scholars thought the court was about to toss out Wickard vs. Filburn. But it concluded in Gonzales vs. Raich that Monson's pot was a lot like Filburn's wheat and that both could be regulated by Congress because they had an impact on interstate commerce.
Legal scholars -- all of whom cautioned they had not read the long health-care law -- think that Congress' insistence that everyone have health insurance falls within the Commerce powers recognized by the Supreme Court.
Joel Goldstein, a Saint Louis University law professor, wrote in an email: "Unless the court is disposed to change its Commerce Clause jurisprudence, I don't see a serious commerce clause problem with mandating the purchase of health coverage. Under the Commerce Clause, Congress can regulate an intrastate economic activity....which substantially affects commerce; under the Necessary and Proper Clause Congress can regulate even noneconomic intrastate activities if reasonably adapted to give effect to a regulation of commerce.
"Consistent with the democratic underpinnings of our Constitution, the court is to review such measures in a deferential manner. Quite clearly, it seems to me, the buying and selling of health coverage and medical services are economic activities, which substantially affect commerce; Congress apparently believes the individual mandate is needed to facilitate the regulation of health care set out in the legislation and accordingly it falls within the Necessary and Proper Clause boundaries."
Health-insurance mandate
Dave Roland, a lawyer with the Show-Me Institute and opponent of the health-care mandate, acknowledges that past interpretations of the Commerce Clause may result in validation of the mandate, but he doesn't think they should.
"To be sure, I think one can make reasonable arguments that the logic the court used in Wickard and Raich might be extended to cover the individual health insurance mandate," he wrote in an email. "But if the court approves this mandate, where does Congress' ability to dictate the lives of ordinary citizens end? Could Congress require citizens to purchase certain foods that it thinks would improve their health? What if Congress thought that requiring citizens to purchase a certain product (such as, say, wheat) was necessary to help keep the price up? Could Congress require citizens to buy goods or services unrelated to their health, such as a vehicle?"
Roland thinks that the health mandate is different from Filburn's wheat and Monson's pot in the Raich case. "In weighing the individual health mandate," he wrote, "the Supreme Court will have the opportunity to distinguish Wickard and Raich. In both of those cases, Congress had decided that certain behaviors had consequences sufficiently unpleasant that citizens could not be permitted to engage in them. Where Farmer Filburn was concerned, his being allowed to grow too much wheat would threaten grain prices; for Raich, ingesting marijuana risked all those societal ills associated with illegal drug use. The Court justified these prohibitions because of their reputed impact on the stream of interstate commerce.
"While I happen to believe that the grant of congressional authority in the Commerce Clause should not be understood so broadly, most would agree that where a citizen's actions result in a harm of one sort or another, it is reasonable for the relevant government to intervene to prevent that harm," Roland continues.
"The individual health-insurance mandate, however, presents a significantly different issue. Here, Congress is not really suggesting that any particular citizen is doing anything 'wrong,' or seeking any special privileges, or causing or threatening any direct harm -- rather, Congress has simply decided that the nation would be a better place if citizens could be forced to purchase a particular service. If a citizen wishes to enjoy what Justice (Louis) Brandeis once called 'the right to be left alone,' it is no longer sufficient for that citizen to simply live responsibly, pay their taxes, and avoid actively causing injury to others. The new paradigm states that merely by virtue of their being alive, a citizen is required to purchase a service that they may neither want nor need... and if they refuse, they must be punished. This is a step far beyond punishing actions that, left unchecked, might cause harm to someone else," concludes Roland.
Goldstein challenged Roland's analogy to Brandeis' famous "right to be let alone" language, noting that it was used in a different context. Goldstein wrote: "Brandeis' 'right to be let alone' comment really doesn't belong in this discussion. He suggested that concept initially as referring to a privacy interest as against society and its gossip, not as against government, and later... as a protection against improper searches and seizures under the 4th Amendment. Brandeis was very receptive to efforts by state government particularly to regulate the economy and insisted that those regulations should be reviewed deferentially. He rejected claims that such regulation violated individual rights of liberty or property."
Love-hate relationship with federal power
Bruce La Pierre, a constitutional law professor at Washington University, noted that the court majority in the Raich medical marijuana case was a delicate one and left "little reason to be sanguine that health-care legislation will survive attack under commerce clause." The vote was 6-3 in favor recognizing Congress' broad power, but Justices Anthony M. Kennedy and Antonin Scalia were in the majority, even though they had earlier supported the Rehnquist court's narrower interpretations of commerce power in the gun-free schools and violence against women cases. For that reason, it is possible that they could be lured into a five-justice majority striking down the health mandate, La Pierre wrote in an email.
Scalia's opinion in the medical marijuana case is particularly interesting. Scalia defended "Congress' power to regulate local non-economic activities IF the local regulation is part of a broader scheme of economic regulation of the interstate market." That "might well come back to haunt him and to frustrate his most ardent Federalist Society cohorts" in the health case, wrote La Pierre.
La Pierre added that he loved the "irony of self-styled 'conservatives' turning to the courts to overturn the products of the democratic process. Republicans oppose national power when they don't like the policy, he noted, but Republicans love national power when they like the policy. La Pierre cited the example of Republican support for President George W. Bush's "no child left behind" law, even though education is the "traditional prerogative of the states."
After having read the states' lawsuit againt the law, La Pierre called it an "embarrassing document if intended to be a legal document, but it is just a political manifesto."
Roger Goldman, a law professor at Saint Louis University, wrote that the health law might be upheld under another broad congressional power -- the power to tax and spend. La Pierre and Goldstein agreed.
Some legal scholars have raised the question -- as did the lawsuit by the 13 states -- of whether the tax penalty imposed on those who refuse to buy insurance is an unconstitutional "direct" tax. The income tax originally was struck down as a direct tax, requiring the 16th amendment to permit direct taxes on income. But the tax penalty for those without health insurance would not necessarily be a tax on income.
One other issue is whether the expansion of Medicaid amounts to the federal government commandeering the states in the same way that the court found unconstitutional in the enforcement of the Brady gun law.
But a number of legal scholars noted that these issues might not be ripe for judicial review for some time. The individual mandate doesn't become effective until 2014 and the federal government pays 100 percent of the additional Medicaid cost until 2017. So it might be the Supreme Court of a second Obama administration that decides any legal challenge -- and that court could have additional justices appointed by Obama.
William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute.