Florida Health Care Ruling: Great Press, Good law?
By Trevor Timm
The January 31 ruling by a Florida district court judge that President Obama’s comprehensive health care bill is unconstitutional made headlines across the country and gave confidence to the almost-universal Republican party position that the health care bill should be repealed.
But while the health care bill remains in effect pending appeal, what does the ruling really mean, and when it inevitably reaches the Supreme Court, what can we expect?
The court ruled that although the Commerce Clause allows Congress to regulate economic activity, it is not allowed to regulate inactivity. Essentially, Congress can’t punish you for not doing something, such as refusing to buy health insurance. Further, because Democrats mistakenly left out a “severability clause”—allowing courts to rule one provision constitutional while leaving the rest of the bill intact—the whole Act was struck down in one swoop.
Legal experts are split on just how long the case will take to get to the Supreme Court. Conservative estimates say it will be at least a year, but since the Obama Administration has said it has no intention of fast-tracking the case to the high court, it may take as many as three.
And when it does, it will certainly be the most politicized case since Bush v. Gore.
This partisan-problem is starkly illuminated by the fact that Republicans invented the individual mandate in the early 1990s as a counter proposal to Democratic President Bill Clinton’s health care plan. At the time, Republican Senators such as Orrin Hatch and Chuck Grassley co-sponsored legislation that included the mandate they now decry as unconstitutional.
As of this writing, four federal courts have ruled on the merits health care bill. The two federal judges who ruled the bill constitutional were appointed by Democrats, while the two who ruled it unconstitutional were appointed by Republicans. (Buried in the back pages last week was ruling by a federal judge in Mississippi appointed by George W. Bush dismissing a similar suit challenging the bill’s constitutionality on standing grounds.)
Bush v. Gore prompted strong criticism that the Justices violated their own principles to, in effect, vote for their favored candidate. Will this happen again? Many legal experts point out that to void the health care bill the justices would have to ignore more than two hundred years of precedent.
Sam Stein of the Huffington Post expanded on a point made by LASIS last year: Justice Scalia’s concurrence in Gonzales v. Raich, a commerce clause case from 2005, suggests that the individual mandate is indeed constitutional even using conservative judicial philosophy.
Not only did the legislative branch have the “power to regulate activities that have a substantial effect on interstate commerce,” he wrote; it had the power to extend itself into “those measures necessary to make the interstate regulation effective.”
Ian Millhiser, an analyst specializing in legal issues for the Center for American Progress, says it’s “impossible” for Scalia to uphold his ruling in Gonzales and rule the health care bill unconstitutional at the same time. Despite Justice Scalia’s seeming to have boxed himself in, however, other commentators have suggested the distinction between activity and inactivity gives Scalia an out.
But even discounting Gonzales, former Reagan solicitor general Charles Fried said before Congress last week that he’s “quite sure that the health care mandate is constitutional” and it’s a “a no brainer.” To back his claim up, he cited much older and more established Supreme Court precedent than Gonzales. Congress’s power to pass the health care law, he said, is clearly defined in both the Commerce Clause and the Necessary and Proper Clause.
In the 1824 case Gibbons v. Ogden the Supreme Court gave Congress “the power to regulate. That is — to prescribe the rule by which commerce is governed.’” He continued, “To my mind, that is the end of the story of the constitutional basis for the mandate.”
Further, in McCulloch v. Maryland, Chief Justice John Marshall indicated that the Necessary and Proper Clause gives Congress the power to institute the mandate as well. “[Marshall said] ‘the powers given to the government imply the ordinary means of execution. The government which has the right to do an act’ — surely, to regulate health insurance – ‘and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means.’ And that is the Necessary and Proper Clause,” Fried said.
Yale Law School Professor Akill Reed Amar went even further and said his first year law students know more about the Constitution than the Florida judge. In McCulloch, he said, “when states’ rights attorneys claimed that Congress lacked authority to create a federal bank, Chief Justice John Marshall famously countered that the Constitution gives Congress implied as well as express powers.” Essentially, the mandate is within Congress’s powers even though the Constitution does not explicitly spell out the regulation of health care.
Perhaps most importantly, even if all of this precedent can be distinguished by the Court’s conservative justices, Justice Scalia has an even larger problem of squaring his well-publicized brand of interpretation known as “constitutional originalism”—looking at what the Founding Fathers intended when they wrote the applicable amendments at the time of their ratification—with a ruling favorable to Republicans.
It turns out that in 1798 President John Adams, an original signer of the Declaration of Independence, also signed “An Act for the Relief of Sick and Disabled Seamen,” which mandated that private sailors must buy health insurance. And who was the leader of the Senate who shepherded the bill through Congress? None other than fellow Founding Father, political-polar opposite and sometime arch-nemesis of John Adams — Thomas Jefferson.
If the nation’s second and third President’s approval of the regulation of inactivity isn’t enough to convince the conservative Justices, in 1792, George Washington himself signed a militia act into law, mandating “Americans to equip themselves with muskets, bayonets, cartridges, the works.”
As commentator Paul O’Rourke said, maybe along with naming President Obama as the defendant in the various healthcare lawsuits, Presidents John Adams and Thomas Jefferson should be named too.
Whatever the path the case takes to the Supreme Court, the political implications will loom almost as large as the established precedent. As the New York Times’ Adam Liptak wrote on February 6, “some scholars are already wondering how much damage, if any, a party-line ruling striking down the law would do to the court’s prestige, authority and legitimacy.” Will the Court choose consistency over partisanship? Only time will tell, but judging by the Court’s increasingly ideological tilt, don’t bet on it.