Health Care Reform Bill is Constitutional

(By Andrew MacKie-Mason)

Randy Barnett, a law professor at Georgetown, wrote a piece about the constitutionality of the health care reform bill that passed the House of Representatives last night (H.R. 3590). His article in the Washington Post sets out to explain the various ways that the health care reform bill could be challenged, though I think it demonstrates a bias towards finding the bill unconstitutional.

I'll go through each of the arguments Barnett raised in his piece and deal with them one by one to show that all of them would ultimately fail. Barnett also has a related post on the Volokh Conspiracy about this issue.

Individual Mandate

Barnett argues that while the Commerce Clause gives Congress the authority to regulate health insurance, it does not give it the authority to impose a "mandate" that people purchase insurance.

But the individual mandate extends the commerce clause's power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying "cash for clunkers" is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.

There are two problems with Barnett's analysis. First, the "individual mandate" is not really a mandate. It is not a law that you must buy health insurance or risk going to jail. Rather, a tax is levied on all people who do not buy health insurance. People who do not own insurance 'self-insure' through emergency rooms, community health centers, and other means. These methods of self-insurance come at a cost to society, and so Congress has a legitimate power to regulate such self-insurance through a tax.

Second, Barnett ignores the Necessary and Proper Clause. This clause gives Congress the power to do anything that is necessary to accomplish one of its enumerated powers. There are many aspects of health reform that would be ineffective if there was no incentive for everyone to buy health insurance. By encouraging people to buy insurance, Congress is doing what is necessary to make some of its other regulation effective, which is Constitutional.

The Cornhusker Kickback, the Louisiana Purchase, Gator Aid and other deals

Here, Barnett is talking about special deals that give aid to specific states. These deals were used to get the votes of certain Senators. I do not necessarily disagree with Barnett that these deals are unconstitutional, and I will at least grant him that it is an open question. However, if the courts found that these deals are unconstitutional they would only strike down those deals, not the bill as a whole. (I talked about the morality of these deals and who's at fault for them earlier today.)

The Slaughter House rule

Barnett is employing the deprecating term for the deem-and-pass rule (which I've talked about extensively here, here, here and here). This would have let the House pass both bills it passed today (H.R. 3590 and H.R. 4872) on a single vote. As I've explained before, this rule would have clearly been constitutional. However, it was not used and this point is thus (as Barnett acknowledges) moot.

State sovereignty provisions

Several states have passed or are planning to pass state laws "nullifying" the health care bill, in that great antebellum tradition. This is (as Barnett also acknowledges) clearly not a valid challenge to a federal law. If Congress has the power to pass the bill, the states cannot overturn Congress. If Congress does not have the power to pass the bill, it will be the courts who decide that, not the states.

If you think I haven't sufficiently disproved any of the possible challenges above, or if you have a constitutional concern with the health care bill that I haven't addressed yet, let me know in the comments.