I was at the American Political Science Association all last week, but now I’m back, and getting into the swing of things once again. I’ve been wanting to say something about the Constitution and health care, and want to even more after reading Jeffrey Toobin’s piece about Justice Clarence Thomas in the 8/29/2011 New Yorker. Toobin points out that, while Thomas rarely asks questions, and is ridiculed for not doing so, he has actually had a lot of influence in moving the court to the right in its decisions. Among other things, Thomas is hoping to get a majority to rule that the health care law is unconstitutional.
I’ll leave the detailed analysis to Toobin (and others), but I want to state the simple case why, in historical context, the health care law is completely in accordance with the Constitution.
- First, regulating health care, including the individual mandate (which requires everyone to be insured) is clearly constitutional for states, as opposed to the federal government. States have broad “police powers” to assure public health and safety, and this is one of them. Mitt Romney’s first attempt to distinguish his plan from Obama’s was based on just this point – no one took him seriously, but he was correct.
- So the issue comes down to whether health care is part of interstate commerce. In reality, it clearly is- health care is a major cost of doing business, as well as a big business itself, and people cross state lines to get health care all the time. The law does not always coincide with reality – but since the early 20th Century, the Supreme Court has held that all business above a certain size (usually defined by number of employees, or by total sales or revenue) is effectively in interstate commerce. I can open a bookstore on my corner, but I’ll be competing with Powell’s, Barnes & Noble, and Amazon. If health care is not constitutional, then neither is Medicare, or the federal minimum wage.
- The point at issue is specifically the individual mandat. An individual who is not otherwise covered is required to purchase insurance. The argument for this is that the system won’t work without it – if people can choose not to get health insurance because they are healthy, then only the sick will get it and the premiums will soar out of reach.
- Of course, if Obama had proposed a better plan (and got it passed, a big if!), such as “Medicare for all,” where everyone is taxed and everyone gets health care paid for by the government, there would be no constitutional question at all.
I’ll leave it to the lawyers to flesh out these legal arguments, this is just meant as a guide to the basic principles involved. It may help you understand the Constitutional debate.