daring to disagree, pt II
by Josiah Parker
Before leaving the Commerce Clause issue, it’s worth confronting the oft used analogy of the healthcare bill’s individual mandate to state laws requiring the purchase of car insurance. On Nov. 9, when the president was asked by ABC’s Jake Tapper about the constitutionality of the individual mandate, Obama responded that it works, “in the same way that everybody has to get auto insurance and if you don’t, you’re subject to some penalty… there’s nothing wrong with [that] penalty.” Unbelievably, this is an analogy that Amar uses as well: “True, the plan imposes mandates on individuals. So do jury service laws, draft registration laws and automobile insurance laws.” For several reasons, this analogy is a poor one (and I blush at correcting both Amar, as mentioned above, a scholar of high repute, and the president, often toted by the media as being quite the constitutional law professor himself, on an issue of constitutional law so basic).
First (and most importantly), States are governments of general jurisdiction, with authority to pass laws on every issue except those few reserved to the federal government. That includes the police power, the authority to make laws for public health and safety. State laws requiring individuals to have car insurance in order to drive are a perfect example of a public-safety and public-health laws under State police powers. By contrast, the branches of the federal government only possess the powers enumerated to them in the constitution. Thus, Congress can only pass the individual mandate if it can identify an express constitutional grant which such legislation is serving. Second, car insurance is not a mandate. It is conditional. One only needs to possess car insurance if one drives. But millions of people don’t drive, choosing instead to use public transportation, or ride a bicycle, or walk. Thus, unlike the individual mandate which unconditionally compels certain citizens to purchase insurance or face a penalty, car insurance must only be purchased if one chooses to exercise the privilege of driving on public roads. Accordingly, car insurance isn’t even necessary to legally drive; one can legally drive on back-roads, or on one’s own property without falling within state insurance laws. Third, state laws requiring that individuals purchase car insurance only require liability insurance—that is, insurance that will cover for the destruction to public or private property not owned by the insured. By contrast, the individual mandate requires that individuals purchase health insurance for themselves. In this way, the public health rationale is much clearer for laws requiring the purchase of car insurance than the individual mandate, which at the very least stinks of government paternalism.
The arguments for the difference between car insurance and the individual mandate are thorough and fatal. Let’s agree to put that analogy to rest, then, once and for all.
Supporters of the healthcare bill will likely respond to the above arguments by looking to Congress’ taxing power to justify the individual mandate. The revenue power under the Constitution is certainly expansive: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States ….” (Article 1, section 8, cl. 1). Indeed, according to the 1937 case of Helvering v. Davis, if Congress reasonably concludes that its taxing and spending programs promote the general welfare, they will be deemed constitutional. Although the power has for this reason been described as “plenary,” the Constitution prescribes several limitations on Congress’ taxing power. One limitation, found in the fourth Clause of Article 1, Section 9, mandates that “no Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” In other words, under the Constitution “direct” taxes must be apportioned to state population: if State X has twice as many people as State Y, the amount of revenue collected from State X must be twice that collected from State Y. Like most federal revenue raising devices, the individual mandate is not apportioned to state population.
So does the individual mandate run afoul of Article 1, Section 9? To answer this question we must first ask whether the individual mandate a “direct tax.” To the extent that supporters of the healthcare bill attempt to obviate a Commerce Clause justification by arguing that the individual mandate is simply a “tax,” the problem they will immediately encounter is that if the individual mandate is to be construed as a tax, it is difficult to see how it could be anything but a direct tax. As mentioned above, it is not an excise tax on the purchase of a good (indirect tax). It is not a consumption tax on the purchase of a service (indirect tax). It is not a tax on one’s gross income (if a direct tax, expressly made permissible notwithstanding Article 1, Section 9’s apportionment requirement by the 16th Amendment). It is the requirement that individuals pay the price of a government approved insurance premium or face penalties. Thus it seems to have the character of a capitation tax—or “head tax”—which, as mentioned in both Helvering and the language of Article 1, section 9, is one of the few examples of a direct tax that the Supreme Court specifically recognizes (along with real estate taxes).
Healthcare bill advocates may counter that the individual mandate is merely a “penalty tax” like a tax for failing to file one’s income taxes by the prescribed date when one is indebted to the government—only, in the case of the individual mandate, the penalty is for not having government approved health insurance. But the disanalogy there is evident: in the case of a penalty tax, the duty to pay the tax is triggered by some noncompliance behavior which is not itself a tax—in the example above, failure to file one’s income taxes by a certain date. However, the individual mandate simply is a duty to pay. In other words, whereas filing one’s income taxes is not a tax, but the failure to do so triggers the penalty tax, complying with the individual mandate is a tax, and failure to do so triggers additional penalties. Thus, calling the individual mandate a “penalty,” turns out to be a semantic maneuver with little substance. Were this allowed, Congress could easily obviate the apportionment requirement for all sorts of surcharges by simply calling them “penalties” for noncompliance with the duty to pay some other government approved agency. For this reason, imposing a surcharge measured by the annual cost of a government approved insurance package is indeed a capitation tax subject to the apportionment requirement. Because the bill runs afoul of this requirement, this avenue also seems foreclosed to the constitutional advocate of the healthcare bill.
And yet there are further constitutional defects with the bill. Both recently debated versions command that states establish “benefit exchanges,” which will require state legislation and regulations. This is not a condition for receiving federal funds, which would still leave some kind of choice to the states—the bill requires states to establish these exchanges or the Secretary of Health and Human Services will supplant State procedures and do it for them. It renders states little more than subdivisions of the federal government. Not only does this violate long-established federalist and constitutional principles of government, but directly conflicts with Supreme Court precedent. In the 1992 case of New York v. United States, the Supreme Court struck down the federal Low-Level Radioactive Waste Policy Amendments Act of 1985, which forced each state to make its own arrangements for disposing of the low-level radioactive waste generated in that state, on the grounds that “Congress may not simply commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal [law].” Similarly, in the 1997 case of Printz v. United States, the Supreme Court struck down the federal “Brady Bill” which ordered local Sherriff’s Department officials to conduct background checks on prospective gun purchasers as a temporary measure until a national computerized system for doing the checks could be phased in. The Court found that Congress may not compel a state or local government executive branch to perform functions—even if the functions are fairly ministerial and easy to perform, and even if the compulsion is only temporary. Because the “benefit exchanges” proposed by the healthcare bill will require state legislatures to pass specific facilitating-laws (in violation of New York v. United States), and compel state administrative agencies to oversee and administer the exchanges (in violation of Printz), the Supreme Court’s “anticommandeering” jurisprudence limits the scope of federal authority over state governments in a way inconsistent with the federal authority required by the execution of this key measure newly passed healthcare bill. While perhaps not fatal to the bill as a whole, this does represent an important constitutional barrier to the implementation of the legislation.
These are only the constitutional defects with the healthcare bill of which I am currently aware. There are almost certainly others of which I am not aware, and yet others that will be triggered if the bill ever goes into effect. It’s worth reflecting, for me at least, on the character of the national discussion over the healthcare reform legislation which has taken place up until this point. While historically debates over legislative policy in America have often been heated, it was always generally assumed by both sides of the debate that the constitution was supreme—that despite the merits of various ideas, and excepting debates over the inclusion of constitutional amendments to reflect the core human rights of our heritage—at the end of the day, if an idea is unconstitutional it should be abandoned. A new trend seems to be developing—or perhaps its more accurate to say is becoming increasingly more popular—in which it is taken for granted that the constitution is actually the handmaiden of policy, rather than policy being the handmaiden of the constitution. That this is true is evidenced by the grand political push for legislation the constitutionality of which was barely understood by most, and outright disregarded by many. The result we have before us is a bill that represents perhaps the greatest challenge to spirit, letter, and meaning of the constitution in American history. And while respected but ideologically driven scholars like Amar and Chermerinsky may cavil at those of us who still revere our founding document and heritage, it is folks like us—the normal folks—who need to stand up, overcome our embarrassment at the task, and resist before the those who consider the constitution a thing to be conformed to whatever is presently politically expedient do such violence to it as to leave virtually nothing left for the future but a tattered old relic in a glass case.