Could SCOTUS Be The Death Panel For Health-Care Reform?
Now that President Obama has signed health-care reform into law, opponents of the bill are pinning their hopes of stopping it on a last-ditch legal strategy. A group of 13 state attorneys general has filed suit (pdf), arguing that the law is unconstitutional.
The bid seems far-fetched at first. But the Roberts Court has recently shown a willingness to strike down landmark legislation — charges of judicial activism be damned. So, given the stakes, it’s worth asking: Could health-care reform have made it through the congressional gauntlet, only to end up dying in the courts?
In recent media appearances, the AGs — the most high-profile of whom have been Ken Cuccinelli of Virginia, Bill McCollum of Florida, and Henry McMaster of South Carolina — have made a grab-bag of claims, among them that the bill violates state sovereignty. That’s a contention that no court is likely to have much time for. As Steve Schwinn, an associate law professor at John Marshall Law School has written, state laws that aim to override the federal mandate "are almost surely unconstitutional, as conflicting directly with the federal requirement."
The stronger argument in the arsenal of the AGs — many of whom happen to be running for governor — relates to the Commerce Clause, the section of the Constitution that empowers Congress to regulate interstate commerce. The AGs focus on the provision of the bill that requires almost all Americans to obtain health insurance. They argue that imposing a penalty on people merely for declining to buy insurance is outside the scope of Congress’s power under the Commerce Clause. "For the federal government to be telling people that they must buy health insurance, or they must buy anything at all, is not one of the powers that is give to the federal government by the Constitution," McMaster declared on Fox yesterday. "Nowhere does it say that the federal government can require a private citizen to go out and buy health insurance or anything else. It’s not a part of the Commerce Clause power."
This argument isn’t, as some reform supporters may wish to see it, merely a bizarre and desperate concoction of the far-right wing — akin, for instance, to the pseudo-legal arguments advanced by "Constitutionalists" for why Obama’s presidency is illegitimate. Over the last six months, it’s been embraced by several respected conservative legal scholars. And more importantly, an emerging jurisprudence from the conservative court does show a willingness to limit the scope of the Commerce Clause.
Last September, David Rivkin and Lee Casey, former Justice Department lawyers during the Reagan and Bush 41 administrations who played prominent roles in support of the Bush 43 administration’s detention policies, noted in a Wall Street Journal op-ed that in a 1995 case, U.S. v. Lopez, the Supreme Court invalidated a law that made it a crime simply to possess a gun near a school, holding that the law did not "regulate any economic activity and did not contain any requirement that the possession of a gun have any connection to past interstate activity or a predictable impact on future commercial activity." Likewise, Rivkin and Casey wrote, a health-care mandate also wouldn’t regulate any "activity." "Simply being an American would trigger it."
Randy Barnett, a professor of constitutional law at Georgetown Law School, agrees: …
