The 800-Pound Constitutional Gorilla in the Health Care Debate

(Josh Hicks) – The vigorous debate on the health care bill has largely focused on policy. Questions such as whether the bill will help or hurt and how expensive it will be for Americans are important and strong arguments have been made on both sides.

But there is a deeper more fundamental question on the bill that has little to do with policy and more to do with the scope of Congressional authority. One aspect of the health care bill in particular brings this question to light.

The bill includes a mandate, effective in 2014, that Americans obtain health insurance or face monetary penalties. This part of the bill was enacted by Congress under the authority of the Commerce Clause of the United States Constitution. While the scope of Congressional authority under the Commerce Clause is undoubtedly broad, some legal scholars have opined that Congress has exceeded the limits of their power with the insurance mandate.

The analysis goes like this. The Commerce Clause has traditionally been used to regulate economic activity of an interstate nature. For example, Congress has passed legislation limiting the amount of wheat that a farmer could grow in an attempt to avoid wheat surpluses. That legislation was upheld under the Commerce Clause because farmers were willing participants in the wheat industry, and wheat prices had national economic impacts.

Congress has also used the Commerce Clause to pass legislation regulating the growth and possession of home-grown marijuana for personal medical use. As with the wheat legislation, the marijuana legislation was upheld because it regulated a class of willing participants engaged in the production of a tangible good.

Critics of the health care bill point out that the difference with the insurance mandate is that instead of regulating economic activity, Congress is attempting to regulate economic inactivity. In other words, Americans will be required to enter into private contracts with insurance companies not because they are willing participants in a particular economic industry, but because they happen to be Americans.

Those critics point out that if there is a justification under the Commerce Clause for such legislation, there are effectively no limits on what Congress can do under the Commerce Clause. For example, could Congress seek to stimulate the economy by passing a law that every American must buy a new car or face a monetary penalty? It might sound far-fetched but it’s a similar Commerce Clause rationale as the insurance mandate.

At the end of the day, and despite how one feels about the policy of the health care bill, the legislation raises fundamental questions about the limits of federal power. The answers to those questions hold significant ramifications for Americans both today and tomorrow.

(Mr. Hicks is an attorney and former Chief of Staff to Nevada Gov. Jim Gibbons)