A Primer on Congressional Powers

Although I have criticized the media for jumping on the "Health Care Reform Might Be Unconstitutional" bandwagon, I am going to jump on it myself. To give the reader an understanding of the issues involved in the question, here's a brief primer on Tenth Amendment jurisprudence and Commerce Clause jurisprudence.



Tenth Amendment


Printz v. United States (1997): The Brady Handgun Violence Prevention Act had provisions that required state law enforcement officials to enforce the federal law. The Supreme Court ruled this provisions unconstitutional, saying that Congress cannot "conscript" state officers into federal service. (Note: This is why states can decriminalize marijuana. Even though marijuana possession is still illegal under federal law, only the FBI or DEA can be required to enforce federal criminal law).

New York v. United States (1992): A law that forced states to enact a particular regulatory scheme for radioactive waste or be forced to "take title" to that waste was unconstitutional because it co-opted the state's legislative process through federal coercion.

South Dakota v. Dole (1986): Although chronologically backwards, Dole provides the loophole that limits New York. Congress cannot force a state to enact a law, but it can still pay them to do so. The Supreme Court ruled that Congress can legitimately condition the distribution of federal highway funding on a state having a drinking age of 21. Dole enunciated that the condition must merely be "related" to the federal funding—even something as attenuated as the relationship between highways and underage drinking. The Court rejected the stricter test offered by the appellants that would have required that any conditions be conditions on the use of the money itself. The Court left for another day the question of whether funding conditions that were so strong as to become "coercion" would be invalid.

Commerce Clause


United States v. Lopez (1995): Lopez was the first case in almost 60 years to overturn a law on Commerce Clause grounds. The Gun-Free School Zones Act made it a federal crime to carry guns within a certain distance of a school. The Supreme Court said that any relationship of the Act to interstate commerce was so attenuated that the Act could not be sustained under the Commerce Clause. The Court reiterated this holding five years later in United States v. Morrison, which invalidated the Violence Against Women Act.

Gonzales v. Raich (2005): The issue in Raich was whether federal criminalization of personal growth and use of marijuana could be sustained as regulation of "interstate commerce." In a 6–3 decision, the Court upheld the law, saying that because personal cultivation of marijuana affected the interstate market for marijuana, it was still regulation of interstate commerce. This reaffirmed the Court's 1942 holding in Wickard v. Filburn, which allowed the federal government to regulate the growing of wheat by individual farmers, because individual crops had a "substantial economic effect" on the supply and price controls created by federal regulations. After Raich, it is generally accepted that any law that regulates personal activity that has direct effect on an interstate market (as opposed to the indirect effects in Lopez or Morrison) is valid under the Commerce Clause.

Application to the PPACA


The PPACA (known in other circles as #hcr) skillfully avoids any constitutional pitfalls. As even the law's detractors admit, state insurance exchanges are not conscription of state employees or state legislative processes under Printz or New York. If states do not create the exchanges, there are no consequences other than that the federal government may step in and create and manage the exchanges itself. This creates a conundrum for state-sovereignty types: either bow to federal regulations, or allow the federal government to come in and do it itself—which is well within Congress's power. In fact, having 50 separate state exchanges was a victory for conservatives; the original House bill had one national exchange.

The individual mandate, however, is the main target of the constitutional challenges. Although prohibiting people from buying insurance would be unquestionably within the Commerce Power, under Raich, there is no jurisprudence on whether Congress can affirmatively require people to buy insurance (or pay an additional tax). Certainly, Congress can require corporations to comply with any number of regulations or face financial penalties, but corporations are not people, and an individual mandate is uncharted territory.

Ultimately, since the actual mandate is merely an additional form of income tax that applies only to people without health insurance, there is no question as to its constitutionality. If the uninsured were thrown in jail, we might have to deal with serious Commerce Clause questions (although I still believe it would be upheld), but the individual mandate is simply a tax. The Constitution gives Congress the power to "lay and collet Taxes..., to pay the Debts and provide for the common Defence and general Welfare of the United States." Taxing people who impose externalities on others through actions that affect interstate commerce is clearly within the scope of this clause. Finally, the Sixteenth Amendment allows Congress to impose income taxes, and the "discrimination" against people without health insurance does not implicate the Equal Protection Clause of the Fourteenth Amendment.

Long story short: The upcoming lawsuits against the PPACA are frivolous, a waste of time, and a waste of taxpayer money.