Constitutional Challenges To Health Care Reform Advancing

With their amicus brief in Virginia v. Sebelius an impressive slate of law professors at the Volokh Conspiracy put to rest the meme that there is a “consensus of legal experts” in favor of the constitutionality of the so-called “individual mandate” in the health care reform bill.  (The bizarre contradiction between most progressives’ demand in this area and their horrified response to the case of the Tennessee homeowner who was denied firefighter coverage after refusing to buy the required insurance policy should be obvious.  It is worth noting that Ron Beasley is consistent on this, however.)

The mandate, which requires every individual to purchase health insurance that corresponds with detailed government mandates as to what is and is not covered or else pay a fine, is either an unprecedented expansion of the Commerce Clause (allowing Congress to not only regulate economic activity that occurs but to force individual taxpayers to engage in economic activity or face punishment) or a dramatic new twist on the Taxing Power (allowing Congress to use taxes as punishment for individual non-compliance with Congress’ will).

The reason it is hard to determine which of the two it is is because defenders of the individual mandate keep changing their story whenever the flaws of each are pointed out.  The Commerce Clause argument is a problem because it goes far beyond even the incredibly broad deference that the Court gave to Congress in Gonzales v. Raich.  And the Taxing Power argument runs afoul of the only limitation that the Court has imposed on it — that taxes must be primarily for the purpose of raising revenue rather than being punitive. (That would be a fine, not a “tax”, and Congress has to have authority or an area independent of the fine before it can impose a fine.  You can’t use the regulation itself as the sole justification for Congress’ claim to be able to regulate something.)  Even if it is a valid tax on that point, however, it runs afoul of the constitutional prohibition against a “direct tax”. Defenders of the individual mandate find themselves thrashing back and forth between two losing arguments and, in most cases, quickly retreat into their old standby of just calling their critics nasty names.  (Whatever the emotional payoff they get out of that, it is not generally a winning legal strategy.)

Initially dismissed as a frivolous legal challenge raised for purely political reasons, the lawsuit has already survived its first procedural hurdle, a motion to dismiss.  This is, of course, a long, long way from winning on the merits and the case will almost certainly be decided at the Supreme Court by Justice Kennedy’s decision in a 5-4 vote.  But things are looking worse and worse for nationalized health care.