Outlook: Is health-care reform unconstitutional?

Randy Barnett
Professor of constitutional law, Georgetown University
Monday, March 22, 2010; 11:00 AM

Law professor Randy Barnett took your questions about the various legal challenges the health-care reform bill could face.

Read the article: Is health-care reform constitutional? (Post, March 21)

Randy Barnett is the Carmack Waterhouse Professor of Legal Theory at Georgetown and the author of "Restoring the Lost Constitution: The Presumption of Liberty."


Randy Barnett: Hello Washington Post readers! Some of you are really thrilled today. Others of you are pretty distressed. In this chat, we will focus on various legal issues. Keep in mind that I do not know everything in this bill or all the potential challenges that could be brought. Or all the arguments against them. But I will do the best I can to answer your questions.


Reston, Va.: Is the health-care bill's mandate that individuals must purchase private health insurance likely to be upheld by the Supreme Court? If it is upheld, is there really any effective restraint on what Congress can order us to do? What would this decision do to freedom and economic choice in the United States?

Randy Barnett: When combined with other court decisions expanding what Congress may legislate about, the answer is really no. There are no legal limits on what Congress may do (except possibly for an express prohibition in the Constitution).


Alexandria, Va.: Even if a person never used any health care their whole life, if they are not part of the pool of insured, aren't they indirectly affecting the costs of those who are insured -- the larger the pool, the lower the cost per member -- and therefore, affecting interstate commerce?

Randy Barnett: On that rationale, government will now be empowered to tell you how you must live your life so as not to impose costs on others.


Emmitsburg, Md.: What is the best possibility of this health-care reform bill being repealed?

Randy Barnett: This is primarily a legal discussion of constitutional issues. But health care will not be repealed until both houses of Congress and the presidency is held by politicians who ran on that platform.


Alexandria, Va.: The penalty aspect of the mandate would fall under the power of taxation, wouldn't it? So maybe this is really an exercise of congress's power of taxation and not of the power to regulate interstate commerce anyway?

Randy Barnett: On this theory any fine can be called a "tax" and Congress can regulate anything at all. This would be quite new.


Ann Arbor, Mich.: Hi Randy,

Your argument about "economic inactivity" strikes me as an argument 'against' the bill being declared unconstitutional. Can't you just flip the coin and say it is the economic activity that is being regulated?

Isn't it true that the mandate and fee (for non-compliance) are equivalent in every way to a tax and exemption? Isn't it -exactly- like hundreds of other tax loopholes?

Randy Barnett: The Eight Amendment refers to "fines." If simply calling any fine a "tax" gives Congress power over that activity--or in this case inactivity--then Congress has always had unlimited power over the people. The Supreme Court has always insisted--even during the New Deal--that there must be some limit to federal power. Given all the other erroneous rulings that have expanded the power of Congress beyond those given in the text, this additional step to mandate activity by means of a fine labeled a "tax" is another place to draw a line. The question is, "will the Supreme Court draw it?"


Gaithersburg, Md.: I'm sure this isn't really the focus of your presence here, but will/should the Senate do something about the 60-vote hurdle as a perversion of Constitutional intent?

Randy Barnett: Filibuster rules are as old as the country. Both houses used to have them and they used to require a 2/3 vote to shut down. But they are only in that part of the Constitution that says each house may make its own rules.


Annapolis, Md.: Professor Barnett, I enjoyed reading your article today. The federal government has a long history of requiring individual participation in federal health and retirement programs (Social Security, Medicare, Medicaid, etc.) which have never been ruled unconstitutional by the Supreme Court. Are the actions of States, including Virginia, just publicity stunts and political theater or would they actually stand a chance in front of a truly impartial Supreme Count? Thanks.

washingtonpost.com: Is health-care reform constitutional? (Post, March 21)

Randy Barnett: Those are not true insurance programs. They are tax and welfare programs. A "single payer" plan would fit this description. Fining someone to enter into a contract with an insurance company is something else.


D.C.: I note the Virginia Attorney General is claiming that Health Care Reform violates the 9th Amendment to the Constitution. Has any statute ever been successfully challenged as violating the 9th Amendment? I thought that Amendment was generally viewed by the courts as surplusage.

Randy Barnett: The 9th Amendment is a special interest of mine. No law has been struck down on 9th Amendment grounds solely, though Planned Parenthood v Casey invoked it correctly to negate a narrow interpretation that fundamental rights are limited to what is in the text. By and large, you are right though about how the courts have treated 9th Amendment claims. But this is another example of several key passages of the Constitution that have been "lost" by judicial construction.


Los Angeles, Calif.: If Senate Republicans oppose or unduly delay the reconciliation package, won't that be equivalent to cutting off one's nose to spite one's face? By opposing or delaying reconciliation, Senate Republicans could be portrayed by Democrats or in the media as supporting the Nebraska Cornhuskers deal or other unsavory deals in the original Senate Health-care Bill that passed in December. Wouldn't it be better for the country for Republicans to work with Democrats to fix the Senate bill rather than playing politics as usual? By not having any Republicans negotiate and vote for reform or the reconciliation, didn't Republicans miss an opportunity for which they only have themselves and their genius strategists to blame?

Randy Barnett: Another non-legal question. But there is no "politics as usual" any more. For the foreseeable future, all politics will be unusual. That is one reason why what happened yesterday--and the way it happened--is so momentous.


Leesburg, Va.: It is my understanding that this bill largely mirrors Romneycare in Massachusetts. The Romneycare program includes the much maligned individual mandate.

My question is: If the notion of an individual mandate is unconstitutional, how has that provision in the Massachusetts law survived since its passage in 2006?

Randy Barnett: Ironically, state "police powers" are much broader than the enumerated delegated powers of Congress.


Woodbridge, Va.: How could an industry that is 18 percent of the entire economy not be considered interstate commerce?

Randy Barnett: Not under that term's original meaning, which referred to the exchange and transit of goods. Manufacturing and agriculture produced items to be sent into commerce, but were not themselves "commerce." Commerce was conducted by MERCants. Not even the New Deal Supreme Court ever changed the definition of commerce. Instead it ruled that Congress could reach activities that were NOT commerce under the Necessary and Proper Clause.


Princeton, N.J.: A Professor Jost of Washington and Lee Law School was on C-SPAN this morning. He claims the states have no standing in this issue. He also says that since the individual mandate does not go into effect for 4 years, nobody has any standing until then.

He also said that the interpretation of the commerce clause has been so broad that any case likely to be thrown out. He gave many examples; the one I thought was striking was the partial birth abortion ban relying on the commerce clause.

Your thoughts?

Randy Barnett: Professor Jost has a very broad reading of federal power! I am not a big expert on "standing," but agree that states may not have standing to contest the individual mandate. They could contest the Cornhusker Kickback, etc. I also think that once the bill is signed any person who will be subject to its mandate could bring an immediate "facial challenge," but I could be wrong about this. As for why previous cases do not justify this extension, I may be able to explain this more as discussion proceeds.


Albany, N.Y.: Please explain how the Health Care Reform bill making people purchase health insurance, or pay a penalty, could be argued to be constitutional. Thank you.

Randy Barnett: Supporters will say that the "principle" of previous Supreme Court decisions extending power over activity that substantially affects interstate commerce can apply to inactivity. But probably the most strongly pressed argument will be that this is a "tax" from which you can be exempted if you buy private health insurance. Courts have been very deferential to tax measures


Fairfax, Va.: Why isn't this a bigger deal? Pelosi et al literally laughed at the idea that individual mandates are unconstitutional. What do they know about the Constitution that us plebes don't?

Randy Barnett: The Republican Senators lodged a constitutional objection in the Senate, which was defeated on a party line vote. Their floor speeches were very illuminating. This issue will need to be addressed serious and, I predict it will be.


Randy Barnett: Those who are interested in a lengthier analysis of the constitutionality of the individual mandate can read a position paper I coauthored for the Heritage Foundation. It can be found here. http://www.heritage.org/Research/Reports/2009/12/Why-the-Personal-Mandate-to-Buy-Health-Insurance-Is-Unprecedented-and-Unconstitutional


Wilmington, N.C. : What is your opinion regarding being forced by the government to buy a health-care policy? Do you believe the Supreme Court will consider it constitutional? Thank you.

Randy Barnett: The safe bet is always that the Supreme Court will uphold the power of Congress, as it generally has for the past 60 years or longer. But this is true right up until the day the Court surprises us by striking down a law. See e.g. Citizens United.


Whittier, Calif.: After your piece came out, President Obama announced that he will issue an executive order that would assure ""consistency with longstanding restrictions on the use of federal funds for abortion." Is such an order within the president's "executive power" under Article II? Would the current Supreme Court be likely to uphold such an order?

Randy Barnett: No executive order can trump what is in the bill as enacted. In case of conflict, courts will enforce whatever the bill says and not what the President orders.


washingtonpost.com: Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional (Heritage Foundation, Dec. 12, 2009)


Alexandria, Va.: If the Supreme Court overturns health care on the basis of it being mandatory -- can I cancel my car insurance (I'm an excellent driver) and stop paying the mandatory flood insurance on my HUD loan?

Randy Barnett: Good question! There is a difference between saying "If you want to do X, then you must do Y" and saying "If you are alive, you must do Y." The first happens all the time. The only clear example of the second at the federal level is the military draft, which is analogous to mandatory militia service. But this question truly goes to the heart of the question of what power government has over the people.


Philadelphia, Pa.: Given that the legislature is largely composed of lawyers familiar with the general constitutional limits on Congress' power, what is the best argument Democrats who supported this bill are bringing to defend against a challenge that it's outside the scope of the commerce clause to regulate health insurance? There must be some plausible argument, but I'd like to know what it is. (I support the bill, but I am concerned about this challenge.)

Randy Barnett: I already responded to this, but it has been a very long time since Congressman of either party paid any heed to limits on their power. This may change now.


Jacksonville, Fla.: There are several states that have passed (VA) or are in the process of passing state legislation that prohibits their states from requiring citizens to purchase health insurance. How can the federal government require citizens to purchase health coverage, as this power is not explicitly delegated by the States to the United States in the U.S. Constitution? It would seem the states are expressively reserving this right by passing explicit legislation to the contrary. Can you elaborate?

Randy Barnett: States cannot exempt their citizens from a proper exercise of federal power and these statutes do not add anything to an analysis of whether Congress is within its powers. It all depends on the answer to THAT question. All states are really doing is expressing their opinion on that. Their opinion is not binding. On the other hand, states DO have the power to call for a convention to propose amendments if the legislatures of 2/3 of the states so demand.


Highland Village, Tex. : Bravo Mr. Barnett, excellent article for a layman to appreciate and understand. Could you explain in more detail the Senate bill's provision exempting people of faith; for example, Christian Science members, but not Methodists, from purchasing health insurance because of their religious views? How is such a provision constitutional?

Randy Barnett: This is just one of hundreds of wondrous constitutional questions we will have years to examine, thanks to yesterday's vote. Anyone who thinks acrimony over health care is now going to subside is gravely mistaken.


Albany, N.Y.: Yale Law School's Jack Balkin and others assert that Congress' authority to tax and spend for the general welfare is even more sweeping than the commerce power, and more than sufficient to support a penalty tax for failing to buy health insurance. Do you agree?

Randy Barnett: I like and respect Jack, but we disagree about this. Calling a fine a "tax" does not make it one. Otherwise the power of Congress would always have been unlimited. Beyond this, the subject gets very complex very quickly. (For example, is it a "direct tax" or a "tax on income"?)


Boston, Mass.: doesn't the Jones Act of 1912 which requires all employers to provide medical coverage and wage replacement for job related injuries and sicknesses eliminate the argument that congress cannot legislate mandatory medical care?

Randy Barnett: Once again, saying HOW you must engage in activity--for example being an employer--is different than mandating THAT an individual citizen must engage in conduct. Employers face LOTS of mandates, federal and state, IF they want to conduct a business.


Tampa, Fla.: Given that health insurance companies currently must have a licensed and legally separate subsidiary in each state in which services are offered, which may not engage in business outside of it's home state, how does regulation of these entities fall under the federal mandate of interstate commerce?

Randy Barnett: Textually it doesn't. What the Supreme Court began ruling in the New Deal is that, under the Necessary and Proper Clause, Congress can reach activity that is NOT interstate or NOT commerce, but which "substantially affects" interstate commerce. A court would today find that health insurance certainly affects interstate commerce. But this is "the Constitution" provided by the Supreme Court (for a long time) not the text of the Constitution itself.


Albany, N.Y.: SCOTUS seems to shy away from striking down a president's primary initiative. Do you think this would have any chance of SCOTUS voting against the mandating of the purchasing of health insurance?

Randy Barnett: This is the $64,000 question. (Or should that be $64 Trillion dollar question?) On the level of pure "realism" which is your question, if this legislation is popular, they are unlikely to strike it down. But if it is deeply unpopular, and one or both houses of Congress flip parties as a result, then the legislation is much more vulnerable. Assuming the Supreme Court follows the election returns, as "realists" claim.


New York, N.Y.: You raise an interesting point about the Cornhusker Kickback, but it seems unsupported by any Spending Clause precedent. Hasn't our legislative process always been built on coalition building through logrolling, President Jackson's complaints notwithstanding?

Randy Barnett: There is almost no judicial oversight of spending since courts now defer Congress's determination of the "General Welfare." But there at least has to be a "General Welfare" story to be told about the legislation itself, and "we needed to pay off this Senator to get his vote" is not an acceptable one.


Washington, D.C.: Why do the vast majority of Georgetown Law professors always argue in favor of increased power for the federal government? How do you deal with this overwhelming bias, and how do you recommend that students deal with it?

Randy Barnett: The vast majority of ALL law professors favor increasing the power of the federal government--especially constitutional law professors. I deal with it by speaking to the public, as I am doing today. When I was a prosecutor I did not expect to persuade the defense attorney. My aim was to persuade the jury. Likewise, I do not expect to persuade my colleagues. But I do not believe in "persuading" my students. My job is to educate them as to how things are today and how we got to this place. Like it or not. Students need to listen with an open but critical mind to all their professors and seek out alternative views. I believe we have minimal influence over our students' opinions.


Opelika, Ala.: If the current legislation is unconstitutional how have those who voted for this legislation overlooked this?

Randy Barnett: Most congressman of both parties pay little attention to constitutionality, despite their oaths. The most they may do is predict whether the Supreme Court will uphold what they do, but since the Supreme Court largely defers to Congress, each branch is are really passing the constitutional buck to the other.


New York, N.Y.: Professor Barnett, a very interesting and thought-provoking article and discussion. My question is whether the individual mandate imposed on the individuals, who on the religious grounds choose to forego traditional medical care (i.e. Amish, Shakers, etc.), would the grounds to challenge the new law pursuant to the theory of the violation of the Establishment clause?

Randy Barnett: I do not know. Some are now exempted from Social Security on this ground. But the hill to climb in proving a good faith religious belief would be steep and would only apply to very few people. So I think this issue is marginal at best.


Palm Coast Florida: I feel violated. A decision on how and where I choose to spend my money has been usurped by government legislation. Laws must be obeyed and taxes must be paid but this is an intrusion into my private life where government has no business interjecting its power. What recourse is available other than voting the proponents of the legislation out of office? Seems we are closing the barn door after the cow escaped. America, learn a lesson. We cannot give congressional power to one political party. Had Congress been balanced politically this would never had succeeded.

Randy Barnett: I am a law professor not a political strategist. But as a citizen, the only *political* recourse would be if one party found it in their interest to make repealing this bill a central part of its platform--as Democrats did for repealing prohibition. Then you will have to tolerate the President and Congress being of that party for repeal to happen. In short, the only political antidote for one party rule will be one party rule. Sorry about that.


Chicago, Ill.: Why has the Supreme Court remained quiet? Don't they watch what is going on? Couldn't they have said what is constitutional or not? I've heard that if the individual mandate is removed, the whole bill falls. This bill has debated for over a year costing taxpayers billions. It would seem like a waste of money to strike it down in the end. Ironically, it would be funny...

Randy Barnett: The Supreme Court does not issue "advisory opinions." They can only decide live cases and controversies that are presented to them by parties with standing.


Randy Barnett: As things wind down, I want to thank everyone who is reading and submitting questions for their civility. We will need a lot of that in the days, weeks, and months ahead.

Those of you who support this bill do not feel too confident it will be upheld by the courts. Remember Bush v. Gore and Citizens United.

Those of you who are opposed to this bill do not expect the courts to save you. They generally have not. Effective political action by you will be required. You cannot look to us lawyers for salvation.

Thanks to all.


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