Tuesday, March 23, 2010

When You're Dead, Lay Down

I took the title of this piece from a line someone tossed out on the Republican lawsuits and threats after yesterday's wonderful signing ceremony (I think it was Paul Begala). Whoever said it, it was good advice.

President Obama was still handing out pens when the Republican attorneys general filed their complaint. (I guess, unlike John Boehner, they had had plenty of time to learn what was in the bill and prepare their complaint.) The lawsuit was filed in State Court in Florida. (You'll soon see it removed to Federal Court.)

The complaint tells us that the health insurance reform legislation, which -- it bears repeating -- was approved by a Senate super-majority and a majority in the House -- is "an unprecedented encroachment on the liberty of individuals . . . by mandating that all citizens and legal residents of the United States have qualifying healthcare coverage or pay a tax penalty." (Paragraph 2.)

The complaint was prepared by David Rivkin and Lee Casey, partners in the D.C. office of the law firm Baker Hostetler LLP. They previously served in the Justice Department under presidents Ronald Reagan and George H.W. Bush. Their arguments were previewed in a Washington Post piece last summer.

I am going to try to resist the legal jargon and case citations, but before we jump into the Constitutional arguments, one has to understand two points:

i. under the Constitution's "Commerce Clause" the Federal Government has the authority to regulate commerce and to enact all laws "necessary and proper" related to that power; and,

ii. the 'tax and spend' clause (there really is such a thing) gives the Federal Government the power to levy taxes for the "common Defence and general Welfare of the United States".

Okay, the Republican attorneys general argument goes like this:

1. "[T]he [health insurance reform] Act compels said persons to have healthcare coverage, whether or not they wish to do so, or be subject to sanction. . . . The Act is directed to a failure to engage in activity . . . . Such inactivity by its nature cannot be deemed to be in commerce or to have any substantial effect on commerce, whether interstate or otherwise. As a result, the Act cannot be upheld under the Commerce Clause". (Complaint, para.64-65.)

2. The act imposes a penalty -- a tax -- on people who don't purchase health insurance. The Republican argument is that the tax isn't Constitutional because "It is to be levied upon persons for their failure or refusal to do anything other than to exist and reside in the United States" -- that is, a coercive tax penalty on "inactivity" is unconstitutional.

The Commerce Clause argument is too cute. In a weak high school debate, it might score a point. In the grown-up world, it fails. The fundamental flaw (and there are many other flaws) is the conceptual blinder required to view "inactivity" as not having the ability to affect interstate commerce.

Individuals not purchasing health insurance have as great and substantive impact on interstate commerce as individuals purchasing the coverage -- it is the lack of coverage which precipitates the crisis. Estimates are some 750,000 personal bankruptcies are filed annually caused by the lack of any, or of adequate, health insurance. That, alone, is quite enough to establish the interstate commerce nexus for Constitutional purposes.

And this is not an unexamined area of the law. The Federal Courts uniformly reject precisely this "inactivity" argument. For example, Federal law requiring former sex offenders to register have been upheld against a claim that the Commerce Clause could not regulate "non-activity" (ie, not registering) and the Federal law criminalizing the failure to make child support payments was also upheld against the same claim that the Commerce Clause does not regulate "non-payment".

Remember when the Supreme Court struck down the Federal law making it a crime to carry a gun in a school zone? It did so on Commerce Clause reasoning that the act of carrying a gun in a school zone was not an activity which, if repeated elsewhere, would have an effect on interstate commerce. While it is a case that Rivkin & Casey like to point to, the obverse of the reasoning undermines their argument -- it is incontestable that the failure to have adequate health insurance -- the "decision not to act", if you like -- has a direct and substantial impact on commerce.

The taxing powers claim similarly fails. First, remember that the Congress can adopt any tax enacted to support any of its enumerated powers. Therefore, if the legislation passes muster under the Commerce Clause, then the taxing provisions are Constitutional. Second, the general tax and spend powers are interpreted very broadly and even if some exceedingly activist Court ignores the interstate commerce nexus, the power to tax for the general welfare is broad enough to sustain the Act. The assertions in the complaint that it is a coercive penalty and not a revenue-producing tax is another word play that has no legal implication -- from a Constitutional law perspective, there is no difference between a coercive tax and a revenue-producing tax.

The Republican attorneys general should just lay down (and encourage John McCain to join them).


Anonymous said...

While you provide fairly in-depth analysis of the topic,I must point out that the 'commerce clause' portion in reference; is actually contained in the 'preamble', and it not actually part of the governing body of the text. The preamble is a descriptive of the following text...not one of the 18 enumerated powers granted to congress. Now, the argument that 'inactivity' effects interstate commerce is flawed, in that; my choosing not to purchase a health insurance policy, has no impact on any other state...as I'm not authorized (un-constitutionally) to purchase an insurance policy from any other state. If however, congress would open up the state lines for 'regular' commerce...they might be able to defend that position. But for now~ they cannot. Further, if one was to read the descriptive intent in the Federalist Papers; it would be realized that the term 'regulate', was used and meant to mean 'to make and keep regular'..i.e. un-impeded amongst the states. Not as an act of 'Regulation'. The fact that the Supreme Court has chosen to rule in matters of commerce is noted...but the cases did not involve 'involuntary, forced purchase' of any product or service. Where is the authority granted under the 18 enumerated powers, to compel mandatory purchase of anything? And before you point to car insurance; remember that I'm not 'forced' to buy and drive a car...if I don't have a car, I don't need car insurance. And that car insurance is to protect the public...not me personally; it's a public safety concern. My inactivity with regards to my personal health, only affects me personally...no one else. chAos (c4coalition.wordpress.com)

A Big Fat Slob said...

Thanks for participating.

I think you have misspoke on the Commerce Clause power. I've taken a look at your blog (http://c4coalition.wordpress.com/) and it seems that you understood the difference and simply misspoke.

It is not, of course, in the Constitution's Preamble ("We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.")

Instead, it is the third clause of Section 8 of Article I. (If you were referring to the "necessary and proper" language, that is the final clause of Section 8 and amplifies all of the preceding powers: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

I've already explained why I think (and not just me but just about everyone who is not ideologically prohibited from the admission) the "inaction"/"action" distinction is of the brown cow/white cow variety(ie, a distinction without a difference), and won't repeat that here.

However, the suggestion that the Congress does not have the authority to pass regulations affecting interstate commerce, because the term "regulate" doesn't mean to pass laws, well, sorry, but that doesn't even pass the smirk test. I recognize that it is one of the linguistic tricks of the so-called original intenters in order to (imo) contort the meaning of the Second Amendment.

But nearly 250 years of accepted understanding and practice simply belies the argument.

Speaking of historical practice, the argument that the framers of the Constitution did not intend to give the Federal government the power to compel someone to involuntarily purchase goods or services contradicts history. The very first Constitutional Congress, peopled by those very same framers, saw no Constitutional impediment in issuing a regulation requiring every draft-age male to purchase a rifle, shot, back pack, and other specific military supplies, in case they were needed to be used to quell invasion or insurrection.