The national health insurance legislation, colloquially known as “ObamaCare,” passed recently by the U.S. Congress and signed by President Obama is historic. However, almost as soon as it became law, several pundits, journalists and lawmakers – as well as law suits filed by the attorney generals from 18 states – began asking the same question: is ObamaCare constitutional?
“If you are looking for a specific clause in the Constitution that explicitly authorizes the national government to regulate the subject of health care, then the answer is obviously no,” says John Finn, professor of government, who has written and commented widely on constitutional law issues. “But then again, most of what contemporary governments do is not explicitly authorized by the Constitution.”
Clearly, the writers of the U.S. Constitution did not foresee the onset of the modern welfare state and the types of services, regulation and economic oversight that has come with it. Yet, the broad construct of the Constitution’s language has allowed for expansive interpretations by both legislators and the courts since the document went into force in 1789.
“The Founders did not anticipate so many things we take for granted like the FTC, FDA, and a whole host of other regulatory agencies, programs like the FDIC and Social Security, as well as other types of government involvement that extends to all areas of life,” Finn says. “Yet, all of this exists without serious constitutional objection today.”
Further, these established areas already include government-provided health care insurance organizations; specifically, Medicare and Medicaid. But the challenges don’t seem to be turning on whether government can become directly involved in health care insurance. Rather, the salient question seems to be whether Congress is exceeding its power by mandating that all U.S. Citizens have some kind of health care insurance, even if those citizens have to pay private insurers for this coverage.
So far, the parts of the Constitution most often cited for such challenges are Article 1, Section 8 (also known as “The Commerce Clause”), the 10th Amendment, or both.
Finn says that very few constitutional scholars would argue that the ObamaCare law exceeds Congress’s power under the 10th Amendment.
“I think every judge I’ve ever spoken to, and every scholar I’ve ever read or spoken to would agree that there must be some residual core of state sovereignty protected under the 10th amendment,” Finn says. “But that doesn’t preclude congress from deciding that there is enough of a problem regarding a specific issue or component of the economy that congress should be come involved. The health care crisis would certainly appear to reach such a level in that it affects a significant part of the economy.”
As for the Commerce Clause, Congress has repeatedly referenced it as a justification for a myriad of laws affecting trade and human behavior, federal regulatory power, taxes, and even civil rights.
“What many people don’t know is that many if not most of the civil rights laws that were passed from 1964 and later were not based on the 14th Amendment’s equal protection provisions, but rather grounded in the Commerce Clause,” Finn says. “In fact, the landmark 1964 Civil Rights Act essentially states that discrimination has a negative impact on the nation’s commerce and because of this, it prohibits discrimination on the basis of race as an economic principle under the commerce clause.”
Further strengthening the hand of Congress and the President, the Supreme Court has been reticent to restrict the Federal Government’s reach under the commerce clause to the point that, since the 1930s, they have let stand almost everything passed with the Commerce Clause as an underpinning.
“The New Deal era was really the logical time when the Supreme Court, if it was so disposed, would have begun to issue decisions restricting Congress’s reach under the Commerce Clause,” Finn says. “And indeed, in a few early cases the Court appeared inclined to take that path. But for the most part the Court has been a rubber stamp whenever Congress and Presidents have using this clause to increase the federal government’s reach.”
There have been two notable exceptions, both relatively recent, however. The Gun Free School Zones Act in 1995 and the Violence Against Women Act in 2000, both of which were passed under the Commerce Clause. Both Acts were struck down by the Supreme Court as exceeding the limits of the Commerce Clause.
“In the 1990s, two or three and occasionally as many as five justices on the Supreme Court, began to issue opinions stating there are actually restrictions on what Congress can do,” Finn says.
The theoretical question that has driven these opinions is where do the limits of Congress’s power under this clause. Or more bluntly, what can’t congress do under the Commerce Clause?
Some legal scholars say Congress has already done too much using Article 1, Section 8 as justification and this is exactly the case to begin reversal of that trend.
“You may find one or two or maybe even three current Supreme Court justices who are moderately sympathetic to that goal, at least in the abstract. But it would require enormous re-thinking of the Constitution generally,” Finn says. “The tools to do so are certainly out there from a legal perspective. But I don’t think it’s an exaggeration to say it would require a constitutional revolution every bit as significant as the one that gave us the New Deal.”
How likely is this with regards to ObamaCare? Finn sees the possibility as remote, at best.
“I think the Constitutionality of ObamaCare, if measured against current Supreme Court doctrine, is an open and shut case,” Finn says. “This doesn’t preclude really good theoretical arguments about why it should be unconstitutional. But just talking about the application of current precedent and doctrine, in my opinion, it’s an easy decision.”
Finn does add a caveat which could counter-balance the apparent self-evidence of the law’s precedent: The Supreme Court is a completely unpredictable entity.
True, to overrule ObamaCare, the Court would have to reverse years of legal precedents. But during the last two centuries, the Supreme Court has occasionally issued rulings that do exactly that.
“I can’t tell you I’ll be stunned if this Court says, ‘We just found new limitations on the Commerce Clause’ and then decides to overrule 40 years of precedent,” Finn says. “Anything can happen with the Court. And if the justices are interested in restraining Federal power under the Commerce Clause, the tools are certainly out there for them to do it. I just don’t see it as likely with this case.”