Health Care and the Constitution

Posted Aug. 13, 2011, at 5:43 p.m.

The following editorial appeared in Saturday’s Washington Post:

WASHINGTON — The constitutionality of the new health-care law – specifically, the constitutionality of the requirement that every individual obtain health insurance or pay a fine – is now squarely teed up for the Supreme Court. One federal appeals court, the Cleveland-based U.S. Court of Appeals for the 6th Circuit, has upheld the individual mandate by a 2 to 1 majority. On Friday, another, the 11th Circuit based in Atlanta, found the mandate unconstitutional, again splitting 2 to 1. The issue is also before the 4th Circuit in Richmond and the federal appeals court in the District. The mandate does not take effect until 2014. But given the central importance of the individual mandate to the architecture of the health-care law, the sooner the Supreme Court finally decides the matter, the better.

In our judgment, the mandate is an unprecedented but reasonable – and constitutional – intrusion on individual decision-making. Lawmakers correctly decided that permitting some people to choose to go without insurance would make it impossible to carry out the law’s requirement that insurance be offered to all without reference to preexisting conditions. The alternative would drive the price of coverage out of reach for those who want it, because the uninsured who end up needing health care would shift the costs of that care onto those participating in the system. As a presidential candidate, Barack Obama did not endorse the individual mandate. As president, he recognized how difficult it would be to craft a workable health-care law without one.

The role of courts, of course, is not to decide how best to write a health-care law but to determine whether the law as written exceeds constitutional limits – in this case the power of Congress to regulate interstate commerce. The majority in Friday’s ruling found that the individual mandate “is a sharp departure from all prior exercises of federal power.” Unlike other requirements imposed on citizens, such as serving on juries, registering for the draft, filing tax returns or responding to the census, the court noted, “the individual mandate requires an individual to enter into a compulsory contract with a private company.” Upholding the mandate, the majority said, would contain no limiting principle: We “are unable to conceive of any product whose purchase Congress could not mandate under this line of argument.”

This is not a frivolous argument, although we believe better reasoning places the individual mandate in line with a series of high court rulings extending the reach of the commerce clause to local or individual activities, such as growing wheat for private consumption. As the dissenting judge, Stanley Marcus, argued, “Congress rationally found that the uninsured’s inevitable, substantial, and often uncompensated consumption of health-care services . . . in and of itself substantially affects the national economy. Moreover, this case does not open the floodgates to an unbounded Commerce Clause power because the particular factual circumstances are truly unique.”

One of the heartening aspects of Friday’s ruling, as with the 6th Circuit decision, was the ideologically mixed nature of the majority and dissent. In Friday’s majority were a George H.W. Bush appointee, Joel Dubina, and a Clinton appointee, Frank Hull; the dissenter, Judge Marcus, was elevated to the appeals court by Bill Clinton but originally named to the federal bench by Ronald Reagan. Likewise, joining the 6th Circuit majority to uphold the mandate was Jeffrey Sutton, a George W. Bush appointee and a former law clerk to Justice Antonin Scalia, a prominent advocate of state’s rights. The notion that a judge’s political pedigree predetermines his or her conclusion on the individual mandate is disturbing. To the extent that these cases disprove that idea, they are a welcome development, whatever the final outcome.

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