Author: Anne-Marie Dao
Uncle Sam wants you ... to eat your fruits and vegetables daily. During her recent confirmation hearings, Supreme Court nominee Elena Kagan was asked by Senator Tom Coburn whether Congress has power under the Commerce Clause to pass a law requiring Americans to eat fruits and vegetables daily. Ms. Kagan declined to say no. Silly as this may sound, that question is actually of critical importance. It and Ms. Kagan's answer (or silence) touches on the heart of the lawsuits challenging the constitutionality of ObamaCare. In fact, PLF Principal Attorney Timothy Sandefur recently debated ObamaCare's constitutionality at the annual convention of the American Health Lawyers Association, and asked his opponent, Professor Stewart Jay, whether Congress could force all Americans to drink a glass of milk before bed every night. Not surprisingly, Professor Jay, like Ms. Kagan, could not say no.
This idea stretches the Clause beyond reason. Imagine you're standing in front of a mall and a police officer orders you to go inside and buy a pair of shoes. You do not need or want shoes; perhaps you were only walking past the mall on your way to the beach. When you ask the officer where he gets the right to force you to buy shoes you do not want, he answers that he is only regulating commerce. This would obviously be absurd, since to "regulate" implies that the commerce being regulated already exists. "Regulation" does not include the compulsion of commercial activities whether it be purchasing shoes or health care.
True, Congress does sometimes compel people to act (as opposed to regulating their self-chosen action). For example, under the Selective Service Act, American men of certain ages are required to register for the draft. But Congress' power here doesn't come from the commerce clause; it comes from a different constitutional provision: Congress has the enumerated power to "raise" armies. To "raise" means something very different than "to regulate."
Congress can require people to register for the census every ten years. But the Constitution gives Congress power to make an "actual enumeration." The power to make an "enumeration" is very different than the power to regulate existing commerce. There are those who believe that the individual mandate is necessary to keep people from taking advantage of the Act's prohibition on discriminating against individuals with pre-existing conditions; they argue that without the mandate to purchase health insurance, people will wait until they get sick before buying health insurance. Others argue that the individual mandate does not fix the "free rider" problem, because people can still choose not to buy insurance and pay the tax penalties, which are less costly than insurance. They claim that you can just pay those penalties until you get sick and then buy insurance-and the insurance companies are forbidden from turning you down. But regardless of whether the individual mandate actually addresses the free rider problem, Congress has no power to impose it. Even if ObamaCare is a good idea, that doesn't make it constitutional. If the federal government wants to impose such a requirement upon American citizens, a constitutional amendment is necessary.
If Congress gets away with its current scheme to force everyone to buy healthcare, what are the limits of its "power" under the Commerce Clause? What could it not do? Certainly requiring Americans to eat vegetables is a good idea. Americans eat too much junk food; it costs taxpayers billions to pay for victims of heart disease; the vegetable industry is a major interstate commercial industry; wouldn't it just be a regulation of the vegetable industry to force everyone to buy and eat some Brussels sprouts? Not to mention the benefits that would accrue to industry lobbyists. A can a day, that's all they ask.
These consequences are inevitable from Congress' absurd stretching of its commerce clause authority. Congress has no power to force you to step into the field of commerce - to buy health insurance or shoes or vegetables. Good idea or not, Americans have a right to go barefoot, to eat junk food, or to refrain from buying health insurance. And that right-like all our freedoms, is protected by the Constitution's limits on Congressional power.
Medical providers can be regulated under the Commerce Clause because they are engaged in interstate commercial activity. Congress can regulate activities that have effect on interstate commerce like the provision of medical care. Someone without health insurance has not engaged in any activity, and therefore cannot be forced to do so under the Commerce Clause.
Posted by: Anne-Marie Dao | July 15, 2010 at 04:22 PM
It seems like the natural conclusion to your line of argument would be that not only is Obama's health care initiative unconstitutional, but so is forcing hospitals to treat persons in emergency rooms without regard to their ability to pay. While the Emergency Medical Treatment and Active Labor Act (EMTALA) of 1986 makes its mandate contingent on accepting Medicare dollars, it results in a de facto affirmative duty on all health care providers to treat all comers. Is it your position that hospitals should not be obligated by federal law to provide care to people whether or not they establish ability to pay before treatment? Or am I missing a distinction?
The mandate in Obama's initiative is a solution to the problem created by the mandate on hospitals. If someone supports mandatory care from hospitals in emergency room settings, then they too ought to support mandatory health insurance. Alternatively, if one opposes mandatory insurance they also ought to oppose mandatory care in emergency rooms. There are vast drawbacks for society from forcing individuals who have health insurance to provide proof of said insurance while suffering from grievous bodily injury. Any analysis of Obama's initiative which does not deal with emergency situations is necessarily incomplete.
Posted by: Sean McTigue | July 15, 2010 at 01:51 PM