Sunday, March 28, 2010
Judicial activism for me, not for thee
- Heading back to the debate in Appalachia
- Redistricting process must be taken from pols
- A shutdown remains a very real possibility
- U.S. Navy Vets case argues for campaign limits
From the RoundTable blog
As promised, Attorney General Ken Cuccinelli filed a lawsuit challenging health care reform legislation moments after President Obama signed the historic bill.
In the lawsuit, Cuccinelli says that in passing an individual mandate requiring all Americans to purchase health care insurance or pay a fine, Congress overstepped the bounds of the Constitution's commerce clause.
As he said in a statement released by his office, "We contend that if a person decides not to buy health insurance, that person -- by definition -- is not engaging in commerce, and therefore, is not subject to a federal mandate."
I'll admit to having some reservations about this aspect of health care reform myself. Though the mandate is an integral part of any meaningful health care reform effort, I initially wondered whether, as Cuccinelli put it, the federal government could have "the authority to require citizens to buy goods or services" from a private business.
Obviously, Medicare and Social Security settled the issue of whether the federal government can force citizens to pay for government-provided services.
That's just one reason I would have been more comfortable if the reform had included a public option, something akin to Medicare that individuals could choose to enroll in at any age if they did not have access to group insurance.
But I'm not a lawyer, much less a constitutional expert. Cuccinelli is a lawyer, and you'd think he would have checked the case law before embroiling Virginia in what will likely be a time-consuming and expensive legal case that could well go all the way to the U.S. Supreme Court -- and which he almost certainly will lose.
Such a review of the case law would have shown Cuccinelli that the commerce clause has been interpreted quite broadly in the past. The case law, in fact, is so clear that most conservative legal experts doubt lawsuits challenging the constitutionality of the individual mandate have even a remote chance of success.
In a recent blog post, Zachary Roth of Talking Points Memo summarized legal arguments by constitutional law experts who believe the individual mandate will pass muster.
Jack Balkin, a Yale constitutional law professor, said the Supreme Court has allowed Congress to regulate "even noneconomic activities if it believes that this is necessary to make its regulation of interstate commerce effective" -- this as recently as a 2005 case allowing Congress the power to prohibit the local cultivation and use of marijuana because it could interfere with efforts to battle the interstate sales of illegal drugs. Conservative Justice Antonin Scalia authored that decision.
In a Politico piece last fall, Erwin Chemerisky, dean of the University of California, Irvine, School of Law, also cited that case to bolster the argument that the individual mandate is clearly constitutional.
As Republicans have gone to great pains to point out, health care constitutes one-sixth of the nation's economic activity, much of it involving interstate commerce -- which Congress is specifically authorized to regulate by the Constitution.
As Simon Lazarus, public policy counsel to the National Senior Citizens Law Center, concluded in a paper released in December, the goals of the health care legislation "are eminently lawful objects for the exercise" of the commerce power.
According to Chemerisky, the Supreme Court has held that the commerce clause includes the "authority to regulate activities that have a substantial effect on interstate commerce." The decision to buy health insurance clearly has a substantial effect on health care in the nation.
It would therefore take an amazing leap of judicial activism on the part of the Supreme Court to overcome well over 100 years of clear precedence to side with Cuccinelli's argument.
That's not out of the question. The Roberts Court, despite the chief justice's promises to respect precedent, has not shied away from the type of judicial activism conservatives normally decry.
It's also interesting to note that the individual mandate was not some wild-eyed liberal's idea. Republicans proposed it as a counter to President Clinton's health care reform proposal.
In fact, some of the Republicans now decrying the individual mandate as unconstitutional sponsored a bill in the 1990s to require it.
Heck, as late as last summer, Sen. Charles Grassley of Iowa said, "I believe that there is a bipartisan consensus to have individual mandates. ... There isn't anything wrong with it."
Before the individual mandate became part of the Democratic proposal, Republicans saw it as a way to avoid the moral hazard of free riders. As Mitt Romney, who, as governor, signed a law in Massachusetts that included an individual mandate, put it in a 2006 Wall Street Journal commentary, "But remember, someone has to pay for the health care that must, by law, be provided: Either the individual pays or the taxpayers pay. A free ride on government is not libertarian."
I don't know what Cuccinelli expects to gain with this lawsuit, other than a name for himself in nationwide conservative circles. But if he believes he has any genuine chance of success, he is sorely mistaken.
If this is nothing but a vanity project, Cuccinelli should foot the bill himself.
Radmacher is the editorial page editor of The Roanoke Times.