[Updated] Is Obama Care Unconstitional? Uh... no. Now with Pretty Pictures!

So. . . ways to attack health care reform with constitutional arguments is a hot topic on the conservative legal blogs right now. This one puts forth the arguments, allegedly based on current constitutional doctrine.

For an overview of how eager conservatives are to usurp the democratic process, see my earlier post.

There are five arguments put forward to challenge the constitutionality of health care reform. They are:

I. Enumerated Powers
II. Excessive Delegation
III. State Commandeering
IV. 10th Amendment "Coercion"
V. Substantive Due Process

They are all big losers. None of the conservative scholars predict the likelihood of success on these claims because they know they are all a very, very far stretch. They also never give a specific provision of the proposed bill which might be challenged under any of these theories. It is more about throwing red meat to ignorant Republicans so that those people can then toss these questions at unsuspecting representatives.

I. Enumerated powers. The argument here is that the Federal government is one of limited, enumerated powers and that providing for health care is not one of them.

Yawn. Shoot me. This argument is so tired and can be used to block any policy proposal. You can always define what Congress doing in overly specific ways. It goes like this: "doing X isn't in the enumerated powers, so Congress can't so X." Well, this issue was solved long ago in Gibbons v. Ogden (1824). There, X = "charter a national bank." Challenging it failed. The claimants performed the error of defining what Congress was doing (chartering a national bank) to specifically, instead of looking at what Congress was proposing in the broader context of regulating commerce and establishing a unitary internal market.

A. Commerce Clause: Under modern Commerce Clause, Congress basically has all the power necessary regulate and ensure a modern, national market. Such challenges have rarely gotten a litigant anywhere, with the exception of the 19995 Lopez guns near schools case (I predict that now that an individual right under the 2nd Am. is activated, some of the cases where the Court used alternative theories to protect gun ownership (Lopez, Printz), are less likely to be employed.

Even under Chief Justice Rehnquist's standard in Lopez, Congress may regulate:

• the channels of interstate commerce,
• the instrumentalities of interstate commerce, or persons or things in interstate commerce, &
• activities that substantially affect or substantially relate tointerstate commerce.

First, I note that the lower standard of "significantly," rather than "substantially" relate was previously also used by the Court and Chief Justice Rehnquist asserted that he was restating, and not overruling earlier precedent in Lopez.

Health care reform substantially relates to interstate commerce for the following reasons:
-Health care costs are 1/6 to 1/10th of the U.S. economy.
-Lots of people travel across state lines to seek medical care. This is especially true when seeing a specialists. Hospitals fly people in helicopters from emergency scenes across state lines.
-People being ill in hospitals and the inefficiency of private insurance burden citizens' ability to be able to travel (as much as segregated restaurants or bus terminals do. See Boynton v. Virginia, 364 U.S. 454 (1960))
-A lack of preventative care affects the entire economy.
-A lack of an efficient, comprehensive health strategy in the U.S. makes it very difficult for U.S. companies, especially small businesses, to compete with French, Dutch and Canadian companies whose owners pay 1/2 to 1/3 what U.S. employers pay (along with the employees and the taxpayers) to provide care. And, the other employees get better care.

What's next? You think the Court should or will strike down Social Security, Medicare, Medicaid, SCHIP, etc. just because the Republicans lost the debate when these programs were proposed and have been completely unable to turn back the New Deal since (although certainly not due to lack of effort, seeing how Bush II took a short-lived attempt to kill Social Security in 2005.) The Republicans on the bench and in legal academia are no different. They grew up hating FDR and the new deal and want to use the courts to kill it.

Although I think the enumerated powers argument is the best on a list of very weak arguments, there is still no precedent coming close to supporting the conservatives' argument. Of course, the Court could just make up a new Constitutional standard, like they have been doing. My guess is that doing so is too much of a stretch, even for the current members of the Court.

Other Creative Solutions:

B. Do it via the tax and spending clause. This leads to the Dole rule in #3 which is easily met.

C. Treaty Power- Congress can regulate beyond its Commerce clause power via the National government's treaty power. This is because, in the Constitution, both Congressional statutes and treaties have supremacy over state law. Ah, the Supremacy Clause, isn't it great? No matter how much Republicans try to deny its existence and no matter how much the conservatives on the Supreme court make up federalism rules after citing to the representatives who LOST the debate over the Supremacy Clause, it is still there. This is how Congress is able to enforce protections on endangered migratory birds even though protecting migratory birds is generally not seen as sufficiently related to interstate commerce. Missouri v. Holland, 252 U.S. 416 (1920).

So, finda treaty that the U.S. has signed establishing a duty to protect access to health care as a human right and regulate pursuant to that. Here is a start on that quest. If the constitutional arguments against health care reform had any merit, Congress could also just ratify a treat unambiguously establishing a duty to provide access to health care for all.

D. Do it basedon protecting inherent human rights, human life and human dignity. The structure of the Tenth Amendment reserves some power to the individual as against the states. Governments are here to protect our rights. Argue that the states are denying their residents of the fundamental right to life and that the National government is compelled to act to protect the inherent human dignity and value of human life. If even express textual Constitutional rights can be overriden by a compelling interest, why isn't the same true for non-textulist Federalism doctrines that the Court has invented? (I think this is the weakest argument I put forth.)

II. Delegation- This is a separation of powers argument. It is based on the idea that Congress should not be able to just give its legislative powers in the Constitution away to an executive agency. It was such a stupid doctrine that it was immediately ignored by both Congress and the Executive ever since, and then virtually abandoned by the Court. The standard is that Congress must give the agency/agent an "articulable principle" to guide them. This is an extremely broad standard, and "protect the health and safety of U.S. citizens from environmental damage" and the like pass this standard. Parts of the health care reform bill which rely on executive agencies, if challenged, will easily pass this standard if challenged. I believe the "non-delegation doctrine" has only helped one litigant ever, and zero in the last 70 years or so.

III. State Commandeering. The non-commandeering doctrine was rolled out of Justice Scalia's posterior in the 1997 Printz order to strike down a provision of The Brady Bill. It was heavily criticized by conservative and liberal scholars as too vague, too broad, anti-majoritarian/anti-democratic, and not supported by either practical political theory or the original understanding of the Constitution. The next litigant before the Court who used the Printz anti-commandeering argument to challenge federal standards for states when they issue driving licenses lost 9-0. It is presumed to be a dead doctrine, and it should have never existed. This is especially true since the constitutional individual right to gun ownership, an issue in Printz, has been activated (activist-ated?) by Heller.)

IV. State Coercion: The governing ruleis from the Dole case of 1987. In Dole, South Dakota unsuccessfully challenged the Federal government's attempt to condition money given to the states for Federal highways on states raising the drinking age to 21. The relevant standard is that requirement attached to the funds must "to the federal interest in particular national projects or programs." First, the Dole standard is relevant to challenge National requirements put on state legislatures, and I have yet to have anybody point out where the proposed bill(s) that is done.

Second, the conservatives misunderstand the standard. Rob Natelson, a very conservative originalist professor from Montana, states that the relevant standard is that the "are related to the funding program." The relevant object is the "federal interest," not the "program" as a whole as Natelson makes it seem. Thus, requiring states to providing health insurance coverage to uninsured people (or other requirements Congress ma set) is undoubtedly relating to the federal interests in protecting life, ensuring quality health care, ensuring a competitive economy, etc. The federal interest (providing health care) and the requirement on the state (to provide health care) could not be more related. This is especially true considering that regulating a minumum drinking age in order to 'ensure safe interstate travel' is considered sufficiently related to funds used to upkeep highways.

V. Substantive Due Process: The argumentis that since Roe protects the privacy of the doctor-client relationship against government interference, then it also protects the individual against Obamacare because "the intrusion invalidated in Roe was insignificant compared to the massive intervention contemplated by schemes such as HB 3200. “Global budgeting” and “single-payer” plans go even further, and seem clearly to violate the Supreme Court’s Substantive Due Process rules."

The argument is, of course, hyperbolic. The conservatives like Natelson are more mocking Roe than putting forth a sincere argument. First, I would like to say that the privacy approach of Roe is crap. It is weak and unconvincing. Reduced to its simplest form, the privacy argument from Roe is an argument against social morality and social rules itself. It is anti-democratic and wrong. Vague notions of "privacy" can be used by a court to strike down any policy, because all policies require obligations on individuals, who cannot be separated from their role and identity as part of society. Even if we accept that argument that "privacy" is a constitutionally cognizable interest, it is not sufficient to override a state's regulatory interest if the state legislature actually believes it is protecting human life. Oh, applying strict scrutiny in Roe was also stupid.
Locating unenumerated rights in the so-called "substantive" aspects of the Due Process Clause is oxymoronic and unconvincing as well. Further, Justice Blackmun's opinion in Roe was elitist, longwinded, unpersuasive and too policy-oriented. There, someone on the left admitted it. Now, people on the right will have to stop using straw man versions of Roe.

However, the governing rule is not the 1973 Roe case, but rather Casey (1992) and Lawrence (2003). The standard is that states may not put an "undue"/"unacceptable"/"unreasonable"/"arbitrary" burden on citizens' interests in liberty and human dignity. See Lawrence, Cruzan; Casey, Glucksberg (Souter, J., concurring, which I think accurately states the relevant approach post-Lawrence & Casey) etc. Oh, and the individual interest really is not privacy, but rather a citizens' ability, as a inherently valuable human being worthy of being treated with dignity and respect and as a rational being, to participate fully and equally in society, which is a society based upon the principles of life, liberty and the pursuit of happiness. Further, it isn't really an individual interest at all, or at the very least should not really be an individual interest at all, it is society's collective interest in living in a free society based on the principles of liberty.

As for interfering with the patient-client relationship, this would get minimal rational-basis scrutiny based on Congress' power to regulate economic affairs. The fact that this is even a topic shows how quickly Republicans and big businesses jump to the courts to protect their entrenched power interests, and at the same time, how much this Supreme Court has been willing, at times, to jump to the call. For fairness'sake, and to defend the Courtm, buying off members of Congress remains much more effective, as the current state of health care reform shows.

Related posts:

People in the U.S. Are Not Adequately Protected Against Abuse by Private Parties

How to Respond to Anti-Health Care Activist?

Conservatives are the Judicial Activists