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Correction to This Article
-- A March 21 Outlook article about potential constitutional challenges to the health-care overhaul, in discussing the possibility that the states could require Congress to call a convention to propose an amendment to the Constitution, and the similar process used when the Prohibition-ending 21st Amendment was eventually ratified by state conventions in 1933, misstated the number of states that were required for ratification. As is still the case, it is three-fourths of the states, not two-thirds.
Is health-care reform constitutional?

By Randy E. Barnett
Sunday, March 21, 2010; B02

With the House set to vote on health-care legislation, the congressional debate on the issue seems to be nearing its conclusion. But if the bill does become law, the battle over federal control of health care will inevitably shift to the courts. Virginia's attorney general, Ken Cuccinelli II, has said he will file a legal challenge to the bill, arguing in a column this month that reform legislation "violate[s] the plain text of both the Ninth and Tenth Amendments." On Friday, South Carolina Attorney General Henry McMaster and Florida Attorney General Bill McCollum announced that they will file a federal lawsuit if health-care reform legislation passes.

Will these cases get anywhere? Here is a guide to the possible legal challenges to a comprehensive health-care bill.

The individual mandate.

Can Congress really require that every person purchase health insurance from a private company or face a penalty? The answer lies in the commerce clause of the Constitution, which grants Congress the power "to regulate commerce . . . among the several states." Historically, insurance contracts were not considered commerce, which referred to trade and carriage of merchandise. That's why insurance has traditionally been regulated by states. But the Supreme Court has long allowed Congress to regulate and prohibit all sorts of "economic" activities that are not, strictly speaking, commerce. The key is that those activities substantially affect interstate commerce, and that's how the court would probably view the regulation of health insurance.

But the individual mandate extends the commerce clause's power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying "cash for clunkers" is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.

If you choose to drive a car, then maybe you can be made to buy insurance against the possibility of inflicting harm on others. But making you buy insurance merely because you are alive is a claim of power from which many Americans instinctively shrink. Senate Republicans made this objection, and it was defeated on a party-line vote, but it will return.

The Cornhusker Kickback, the Louisiana Purchase, Gator Aid and other deals.

Some states are threatening lawsuits to block the special deals brokered by individual senators in exchange for their votes. Unless the reconciliation bill passes the Senate, such deals could remain in place. Article I of the Constitution allows Congress to tax and spend to "provide for the common defense and general welfare of the United States." Normally, this is no barrier to legislation benefiting a particular state or city. Congress can always argue that, say, an Air Force base in Nebraska benefits the United States as a whole. But the deals in the Senate bill are different. It is really hard to identify a benefit to all the states from exempting one state from an increase in Medicare costs or allowing only the citizens of Florida to get Medicare Advantage.

The Slaughter House rule.

A far graver threat to the bill would have been to declare it unconstitutional because it was never formally voted on by the House and therefore never became law. Article I requires that every bill "shall have passed the House of Representatives and the Senate" to become law, and that "the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered in the journal of each House respectively."

The whole purpose of the "deem and pass" procedure -- which was advocated by Rules Committee Chairman Louise Slaughter -- was to avoid a separate vote on the Senate bill, which many House members find objectionable, and instead vote on the reconciliation bill and simultaneously "deem" the Senate measure passed. Although Democrats cited prior examples of deem and pass, "the Republicans did it" is not a recognized constitutional argument -- especially if the public and the justices have never heard of such a thing. This constitutional objection seems to have succeeded, as House leaders decided on Saturday to take a separate vote on the Senate version, rather than "deeming" it passed.

State sovereignty provisions.

Several states are considering measures attempting to exempt their residents from an individual health insurance mandate. While such provisions may have a political impact, none is likely to have any effect on the legislation's constitutionality. Under the 10th Amendment, if Congress enacts a law pursuant to one of the "powers . . . delegated to the United States by the Constitution," then that law is supreme, and nothing a state can do changes this. Any state power to "nullify" unconstitutional federal laws has long been rejected.

Constitutional amendments.

Of course, there is one additional way for states to win a fight about the constitutionality of health-care legislation: Make it unconstitutional. Article V of the Constitution gives state legislatures the power to require Congress to convene a convention to propose an amendment to the Constitution. If two-thirds of state legislatures demand an amendment barring the federal regulation of health insurance or an individual mandate, Congress would be constitutionally bound to hold a convention. Something like this happened in 1933 when Congress proposed and three-quarters of the states ratified the 21st Amendment, removing from the Constitution the federal power to prohibit the manufacture, sale and transportation of alcohol. But the very threat of an amendment convention would probably induce Congress to repeal the bill.

Ultimately, there are three ways to think about whether a law is constitutional: Does it conflict with what the Constitution says? Does it conflict with what the Supreme Court has said? Will five justices accept a particular argument? Although the first three of the potential constitutional challenges to health-care reform have a sound basis in the text of the Constitution, and no Supreme Court precedents clearly bar their success, the smart money says there won't be five votes to thwart the popular will to enact comprehensive health insurance reform.

But what if five justices think the legislation was carried bleeding across the finish line on a party-line vote over widespread bipartisan opposition? What if control of one or both houses of Congress flips parties while lawsuits are pending? Then there might just be five votes against regulating inactivity by compelling citizens to enter into a contract with a private company. This legislation won't go into effect tomorrow. In the interim, it is far more vulnerable than if some citizens had already started to rely upon its benefits.

If this sounds far-fetched, consider another recent case in which the smart money doubted there were five votes to intervene in a politicized controversy involving technical procedures. A case in which five justices may have perceived that long-established rules were being gamed for purely partisan advantage.

You might have heard of it: Bush v. Gore.

Randy E. Barnett teaches constitutional law at Georgetown University. He is the author of "Restoring the Lost Constitution: The Presumption of Liberty." He will be online to chat with readers at 11 a.m. on Monday, March 22. Submit your questions and comments before or during the discussion.

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