City of Brass

City of Brass

Is health care reform unconstitutional?

Today, the President signed health reform into law. This is an incredible, historic achievement.

And it was done entirely without the help of the obstructionists of the GOP, who decided that it was more important to humiliate President Obama than to work with him to try and address the nation’s desperate need for genuine reform. To quote conservative David Frum, bemoaning the loss of sanity among the Republican Party mainstream,

The gap between this plan and traditional Republican ideas is not very big. The Obama plan has a broad family resemblance to Mitt Romney’s Massachusetts plan. It builds on ideas developed at the Heritage Foundation in the early 1990s that formed the basis for Republican counter-proposals to Clintoncare in 1993-1994.


The Obamacare = RomneyCare argument is increasingly conventional wisdom even among conservative cognoscenti like Patrick Ruffini, who tweeted as much on Sunday night. This in itself undermines the “Repeal It” campaign now taking shape among the GOP base, which is foolish strategy for a number of reasons (and therefore, I welcome it). Obviously, the Republicans are trying to save political face here; having demagogued against health care for 14 months to an increasingly rabid base, they can’t go home and say “well, that’s that.” But what are their ostensible policy reasons for repeal?


The basic conservative argument that we can’t afford health reform was blown out of the water by the nonpartisan CBO analysis, which found that the reform bill will actually reduce the deficit by over a trillion dollars over the next decade. Contrast this with the (bipartrisan) Medicare Part D, passed under President Bush’s watch, which blows a giant hole in Medicare funding. When I ask conservatives why Medicare Part D isn’t part of the various RepealIt petitions and Twitter campaigns taking shape out there, the answer is invariably, “one thing at a time.” I don’t see why you cant advocate repealing two things at a time, but OK assuming that’s the case, why wouldn’t you want to repeal the demonstrably, objectively worse legislation (from a deficit perspective) first? The fact that the repeal campaign is being spearheaded by the Club For Growth only puts the fiscal-hawk hypocrisy in starker relief.


The real Republican argument against health reform is all about “Freedom” – specifically, complaining that the legislation’s requirement of an “individual mandate” infringes on liberty. Actually the rhetoric is utterly insane on this; Republicans liken the bill not just to socialism but now, fascism, tyranny, and the “death” of democracy (even though the legislation was passed by an elected Congress, will be signed into law by an elected President, and the election this November provides voters their usual opportunity for accountability).

The crux of the argument boils down to the 10th Amendment, the Commerce Clause, and “strict constructionism” which is basically all a question of settled law and precedent. The 10th Amendment simply states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This means that Congress can’t create laws about anything not specifically spelled out in the Constitution. Now, since Congress clearly creates laws about things not mentioned in the Constitution all the time, you might wonder how that is poossible. The answer is in the “Commerce Clause” (Article 1, Section 8) which states, “Congress shall have the power … to regulate commerce with foreign nations and among the several states” and “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.”


So, in essence, Congress can pass laws affecting interstate commerce. Two centuries ago the word “commerce” was mainly limited to physical goods, but in the modern era it applies to pretty much everything – and the Commerce Clause has been broadly interpreted by conservatives and liberals alike to justify Congress’ ability to pass laws about pretty much anything that has a nationwide scope. In fact, the Commerce Clause was used to enact the New Deal, saving the country from the Great Depression under FDR, and for the landmark Civil Rights Act of 1964.

Now, the conservative argument for why the bill is unconstitutional relies on a “strict constructionist” approach which denies the validity of the Commerce Clause as applicable to health reform. (note that they raised no such objection for Medicare Part D, when President Bush was promoting it). There’s essentially a consensus that they are wrong; many pundits have been weighing in on this. For example, Marc Ambinder from the Atlantic:


Congress’s latitude here is wide. And this health care legislation has an undeniably broad effect on the economy, even though the specific provision in question is inherently localized. So the question is: can the government regulate localized — individual — decisions if they collectively serve a purpose that Congress is constitutionally empowered to be concerned about — AND if depriving Congress of this particular right would upend the regulatory scheme itself. Note: the definition of Commerce itself — the exchange and transit of goods and services — is a red herring. The courts have accepted Congress’s ability to regulate things other than “Commerce.”

(…) when localized decisions have nationalized effects, then it is “squarely within” Congress’s purview to regulate it. (Wrote Justice Antonin Scalia in a concurring opinion: “Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce.”) Congress believes that the mandates, by creating a pool of healthy and unhealthy folks, will help contain the cost of health care. That’s their intent; the court would be hard pressed to argue policy with Congress.


(Ambinder quotes case law as precedent – notably Raich vs. Gonzales). Note that even the most conservative members of the Supreme Court have basically affirmed this view.

Matthew Yglesias also chimes in:

There’s long been a strain of thought which says [Article 1, Section 8] should be interpreted simply as a prohibition on state-level trade barriers with Commerce “among the several States” understood as basically about transporting goods across state lines. But from the beginning, the federal government’s powers have been interpreted rather more expansively than that. We had the Louisiana Purchase, the Bank of the United States, Henry Clay’s “American System,” a transcontinental railroad, land grant colleges, etc. And in particular since the New Deal the commerce clause has always been understood as granting wide-ranging authority to regulate the national economy.


Over the past 20 years the Supreme Court’s conservative majority has started to reel this authority in somewhat, declaring that the Violence Against Women Act and the Gun Free Schools Act aren’t really about commerce and that economic impacts were cited in the legislative history as just a kind of pretext. But nobody can seriously deny that health reform is a bona fide regulation of economic activity for an economic purpose.

And let’s make a final note that the individual mandate itself was originally proposed by the conservative think tank, The Heritage Foundation, and passed into law in Massachusetts by Republican governor Mitt Romney (who is going to be one of the major aspirants for the 2012 GOP nomination). That should be interesting!


Also, see further comments about the prospects for repeal/constitutional challenge by Ezra Klein and by David Weigel.

One last thought. Expecting the Supreme Court to overturn decades of jurisprudence and precedent, solely for political gain, is the very definition of “judicial activism”. Once upon a time, conservatives used to argue against such a thing. But conservatism is dead; Republicanism alone remains, and for them the ends justify the means. These are the same people who were arguing that “The Constitution is not a suicide pact” after 9-11 during the Bush Administration’s power grab.

Related: Frum’s piece is titled, “Waterloo” and deserves a full read for a powerful conservative indictment of the Republican Party. They truly have become the Party of No (Class or Principles).

  • Patriot84

    Basically all this healthcare bill is going to do is cause our health insurance to skyrocket in 2014. Healthcare will become mandatory thus allowing Health Insurance companies to charge whatever they feel like. Good going government officials you really screwed up again. It’s not just Democrats or Republicans messing up. Both sides are just greedy arrogant morons that allow corporate America to run the country. Our founding fore-fathers would be turning in their graves at the way our government has turned out post-WWII.

  • JL

    No matter how much you liberals like this bill (or don;t like it)…it has nothing to do with its contstitutionality….
    You don;t have to be a constitutional lawyer to understand that the commerce clause just regulates commerce not the “absence of commerce”…translation…you can;t force someone to buy something they don;t want nor need for the “greater good” (pardon my laughter)…if the courts allow that one..then basically the entire US economy could be nationalized tomorrow (under the commerce clause for the “greater good” )by Obama and Pelosi and there would be nothing we could do about that. These clowns have overreached this time and I hope the courts do their job and protect our constitution and the founders intent with the commerce clause. I don;t think the entire law will be declared invalidated..but I do expect at the very least that the court requests (requires) the individual mandates to be modified to make them optional (ie no forced participation).

  • ed

    Could you have exposed your bleeding heart agenda any more clearly, Aziz? The lengths to which your type will go to perverse, manipulate and twist not only the spirit but the meaning of the constitution is sad to say the least. Federal government has the right to regulate commerce, mandating (i.e. forcing) people to engage in commerce is not applicable under the commerce clause. The health mandate regulates people simply for being people and for no other reason and that, my uniformed naive friend is not constitutional. You can quote all the experts you want. I can do the same. You people act like no federal laws have ever been repealed by the supreme court, you are sadly mistaken. It’s rare, but it happens, in fact it just did a couple months ago. There is no case law, no precedent that applies to this type of situation. This patently unconstitutional socialist law will be repealed one way or the other. It will take years, but it will we be done and you unAmericans can go to hell.

  • Greg

    No “strict construction” is required to see the flaw with the law as passed. Even the broadest reading of the Commerce Clause presupposes that there is an area beyond commerce. Specifically, a lack of commerce. So while Congress can pass a law making drugs illegal, they cannot mandate that you go buy drugs. You have to be doing something that would permit extension of federal jurisdiction. And if your only “action” is really inaction–a refusal to buy a product–then there can be no commerce clause jurisdiction. This is going to be overturned by the Supreme Court. No question about it.

  • MedicareUncluttered.Com

    Medicare Advantage offers benefits that Original Medicare does not offer. For example, dental, vision, cancer screenings, prescription drug and prescription drug gap coverage. Seniors with Original Medicare have to purchase two private insurance policies to obtain these benefits.

  • Dots

    No one was screaming “Socialism” in 93, or “jammed down our throats” in 03 or “Unconstitutional” when Republicans have done the same thing. Unfortunately, the right wing rhetoric distorts fact and reason. Keep blogging the truth!

  • nnmns

    That was a very thoughtful analysis Aziz. Thanks for the citations. Of course we do have a rogue conservative majority in the SCOTUS which is willing to bend the law to suit the purposes of the Republican Party so we’ll keep our fingers crossed.

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  • Alicia

    You hit the nail on the head, Aziz. Unless those who are screaming that Health Care Reform are willing to do away with Medicare and Social Security instantly (in which case, explain that to my mother, please, who will be destitute if you all have your way) then they are simply rank hypocrites.
    I highly recommend this piece by Joan Walsh, of Salon, about how the Republican Party – the Party of No Principles and No Class has embraced the Tea Party:

  • Alicia

    Oops – that should have been “unless those who are screaming that Health Care Reform is socialism are willing to do away…”

  • Mary Ann

    You are only supporting this man because you think he is muslim and I know this for fact,I am married to a muslim man from egypt.If this president was christian you would show nothing but hatred to him.So shut your mouth you racist bastard.

  • Had Enough

    With all due respect, get back on topic. Beliefnet is not linking your blog as a Muslim perspective in the name of interfaith outreach so that you can spout the Democratic Party line. I am a subscriber to the Daily Muslim Wisdom newsletter to learn about Islam, not your opinions on why the GOP are a bunch of big, bad, stupid meanies who can’t understand how right you are. There are a thousand better political blogs online I could be reading instead if I wanted that.
    For many of us, we are outraged about the process of what happened here–the unprecedentedly brazen levels of political corruption, and the self-serving folly of politicians to put the needs of the party ahead of the desires of their constituents. You clearly don’t understand. This goes beyond the content of the laws being passed. How any honorable, God-loving person could be proud or pleased about such wicked, greedy, dishonest behavior defies logic. This has been a means that no end could ever sufficiently justify.
    If you want to talk about the impotent rage people in Egypt feel about their lack of input into who will take power after Mubarak, or why low-life thugs cloak their criminal mayhem in the guise of sectarian differences to disturb the nascent democratic process in Iraq, carry on, but otherwise, find something other than your political opinions to blog about.

  • Timhogs

    Aziz, while I agree that the health care system in the United States is in need of significant reform, I have to respectfully express some skepticism that the recently-signed health care legislation will actually improve the situation. But your entry does make some valid points regarding the constitutionality of the legislation, and I suspect it will be upheld as you describe.
    I have two points around which my skepticism is based: First, the United States already has a federally-run health care system. My beloved wife is an employee at the local Veteran’s Administration Hospital; and each day I need to help her deal with the stress of working in an atmosphere of gross management incompetence, slipshod standards, and insufferable bureaucracy. The VA Health System has been a laughingstock my entire life; and I would suggest that if the Federal Government cannot adequately manage the health system they already run (as has historically been the case), it is unlikely that they will be able to manage a larger one.
    Second, the part of the recent legislation that concerns me even more is the universal requirement to buy health insurance, which I believe *may* open the door to unprecedented abuse. I am accusing neither Mr. Obama nor any current member of Congress of this; but it is conceivable that at some later date, a Congress, under the guise of “reducing Government spending” and using the constitutional mandate of regulating interstate commerce, *may* impose mandatory behavior modification. Consider the “obesity epidemic,” for example. Eating sensibly may always be a good idea, but it could, in the manner I’m describing, become the law, because it will “cost the taxpayers less.” It may seem far-fetched, but not too long ago the idea of “gay marriage” was also nearly unthinkable; and further back, many people felt that slavery was a legitimate business.
    (And since I brought it up and before I get pigeonholed as a “right-wing hater,” I don’t have a problem with the idea of gay marriage; I would love to see my niece and her lady living happily ever after)
    Ultimately, though, I don’t think the reform legislation will really live up to the promises, good and bad. On the contrary, I think that over time, like so many other good ideas, it will be gutted piecemeal by labyrinthine regulations, underfunded, and finally over-ridden by smaller, less spectacular legislative changes.
    My free opinion, and worth every penny.
    Keep writing!

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