Court Conservatives Take On Health Law

Commerce Clause Is Often Used To Regulate Markets

Arguing Obamacare: Paul Clement discusses the case against the health care reform act. The conservative majority on the Supreme Court seemed receptive to his argument that Americans should not be forced to buy insurance.
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Arguing Obamacare: Paul Clement discusses the case against the health care reform act. The conservative majority on the Supreme Court seemed receptive to his argument that Americans should not be forced to buy insurance.

By J.J. Goldberg

Published March 30, 2012, issue of April 06, 2012.
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Like Charlie Brown and his famous football, various liberal legal scholars have been writing for weeks now that the Supreme Court just might transcend its 5-4 partisan divide and decide the fate of President Obama’s health care reform on the merits, not the politics.

It’s conceivable. Perhaps one or more of the conservative justices will side with the administration and let the health law stand, despite the obvious skepticism the conservatives displayed during the hearings on the law in late March.

True, the conservatives seemed unanimously hostile to the law’s central requirement that individuals buy health insurance. One after another, their questions suggested that it expands the government’s power to regulate interstate commerce far beyond what the Constitution intended. It’s a basic tenet of conservative judicial philosophy that we should read the Constitution as the Framers intended it and not reinterpret it to fit the fashions of the moment. And the Framers never mentioned health insurance.

Unfortunately for the administration, the power to regulate interstate commerce is the peg on which it’s hung the insurance mandate, and without it, the whole reform is in trouble. Many healthy people won’t buy insurance if they don’t have to. If so, sick people’s premiums will keep rising. The law’s most popular rules, like barring insurers from excluding pre-existing conditions, will become untenable.

But what if the Framers didn’t mean “commerce” the way we think? Samuel Johnson’s “Dictionary of the English Language,” our best guide to common usage in that era, defined it in 1792 as “interchange of any thing; trade; traffick.” He also offered a far more abstract meaning: “intercourse” (by which he meant human interaction in the broadest sense, not you-know-what). Which meaning did our Founders have in mind? Hard to say.

Even with the conservatives’ commitment to “original intent,” therefore, they could theoretically lean either way on requiring insurance. Take Justice Antonin Scalia. He was particularly skeptical of the mandate during the hearings. He asked sarcastically if the same logic could force individuals to buy broccoli as a way to regulate interstate commerce in food. And yet the same Scalia in 2005 endorsed federal regulation of another leafy green vegetable unmentioned in the Constitution. He was writing a concurring opinion in Gonzales v. Raich, which allowed Congress to override California’s medical marijuana laws. Regulating interstate commerce, Scalia wrote then, could include banning even “a noneconomic local activity” that does not “substantially affect interstate commerce,” if it helps “to make a regulation of interstate commerce effective.” The “relevant question” was whether Congress was acting “reasonably” to attain “a legitimate end under the commerce power.”

If barring Californians from growing marijuana in their bathtubs falls reasonably and legitimately under Congress’s commerce power, it’s hard to see how requiring individuals to buy health insurance doesn’t. Both laws stretch the federal government’s powers in ways the Founders never imagined in pursuit of social goals they hadn’t dreamed of: preventing marijuana use and saving lives through modern medicine.


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