Tuesday, December 14, 2010

Chief Justice John Marshall is not amused

It has by now been reported in even the remotest precincts of wing nuttia that the recently-passed health care reform law is UNCONSTITUTIONAL!

As you can read in the linked NYT article, a federal judge in Virginia ruled that just a part of the law – the mandates to individuals to buy health insurance – was unconstitutional.

The first interesting thing to note about the decision is the judge. Henry Hudson is a George W. Bush appointee. But that’s not the interesting part.

It turns out that Judge Hudson still has a financial stake in a GOP consulting firm that was working against health care reform.

It kind of makes you think of the old coin dealer inveighing against the Fed, doesn’t it? In truth, it is much more serious than that.

But let’s let other stew about Judge Hudson’s infidelity to the principle of an independent judiciary! Let us consider instead the, um, merits of the decision. In order to read up on the case, I turned, as I often do, to Balkinzation. Several of the writers there offer commentary on Judge Hudson’s opinion.

Here’s Mark Tushnet, a professor at Harvard:

I don't think anyone was surprised that conservative Judge Henry Hudson held the individual mandate unconstitutional. What's surprising is the traction that the distinction he relied on has gotten. Congress, according to Judge Hudson, has the power to regulate economic activity but not economic inactivity, that is, a failure to participate in some market such as the insurance market. This distinction seems to me unsound in principle but, more important, inconsistent with the governing precedents. The primary one is Wickard v. Filburn, which is usually described as holding that Congress has the power to regulate economic activities that, taken in themselves, have no substantial effect on interstate commerce but when aggregated do have such an impact. The economic activity in Wickard was the consumption on a person's own farm of wheat grown on that farm.

When there is a governing precedent, of course, the inferior federal courts are supposed to follow it; it is up the Supreme Court to change it.

Judge Hudson got his most thorough wire brushing, however, from Professor Andrew Koppelman from Northwestern; here are the first few graphs of his post:

Today’s federal ruling striking down the Obama health care law is powerful proof that the law is, in fact, constitutional.

This apparent paradox emerges from the bizarre new legal theories that Judge Henry Hudson had to invent in order to invalidate the law – theories that, if taken seriously, would randomly destroy large parts of federal law.

The decision concerned the requirement that most Americans purchase health insurance or pay a penalty. Without this mandate, the law’s protection of people with preexisting conditions would mean that healthy people could wait until they get sick to buy insurance. That would bankrupt the entire health insurance system, because no one would be paying into the pools. Congress decided to charge those people for the costs they impose on their fellow citizens.

The Constitution gives Congress the power to “regulate Commerce . . . among the several states,” to “collect Taxes,” and to “make all Laws which shall be necessary and proper” to carry out its responsibilities. The commerce power has been understood for years to permit regulation of the national economy, which, the Supreme Court held in 1944, includes insurance. The mandate is also valid under the taxing power, which is not limited to objects of interstate commerce. The Court held in 1950 that a tax does not become unconstitutional “because it touches on activities which Congress might not otherwise regulate.” In carrying out its powers, Congress is given a broad choice of means by the necessary and proper clause; that was settled way back in 1819. This is why the two other federal district courts that previously considered challenges to the law had no problem throwing the cases out.

Professor Koppelman’s post is an excellent exposition on the subject of federal power; it’s not too dense for us ordinary mortals, and I recommend it. Here’s just another bit describing another case on the activity/inactivity issue:

The Supreme Court rejected the purported “inherent right of every freeman to care for his own body and health in such way as to him seems best” in 1905, in Jacobson v. Massachusetts. The claimant there asserted that mandatory smallpox vaccination violated his rights. It is true that vaccination was an imposition on his liberty. Dying of smallpox is also an imposition on one’s liberty.

(Update: I would add to Professor Koppelman’s observation and note that a refusal to get the smallpox vaccination diminishes the freedom of everybody else, in that it increases the risk of contagion to others. There is some point at which society is entitled to protect itself from irresponsible fools.)

No post – by me, anyway – on constitutional law would be complete without a shout out to everyone’s legal great-grand daddy, John Marshall. He wrote for a unanimous court in McCulloch v. Maryland, the 1819 case that Professor Koppelman refers to, holding that the federal government had the implied power to charter the Second Bank of the United States. When the Congress takes up a legitimate subject of regulation, it is aided by the Necessary and Proper Clause of Article 1 Section 8 of the Constitution. That is clearly what the insurance purchase mandate is here, a necessary and proper aid to the regulation of insurance.


Cameron Obert said...

This is a great piece! I'm truly inspired by it. One thing that I've been baffled by is why isn't anybody questioning the legitimacy of this judge. He should have recused himself from the case because he is part owner of a company which lobbied against health care reform. Where is the press? Where is the White House? Where is the outrage?
Cam Obert 

blogspotdog said...


I defend health care reform constitutionally. But we wound up with the individual mandates because Obama gave up, in my opinion, on better options way too early. We now find ourselves having to defend a bad bill.