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March 27, 2012

Liberty, commerce, the federal drug war, health care reform and the Constitution

I have not paid all that much attention to the health-care-reform litigation, although it is hard for a law professor who dabbles in constitutional theory to avoid giving the basic issues some thoughts.  And now that the case is being argued before the Supreme Court (and with the buzz from yesterday's argument suggesting that the Justices are eager to get to the substantive constitutional issue at the heart of the case), I cannot help but express my two (superficial?) cents on the legal issues at the heart of the cases. 

In short form, I remain deeply disappointed that the bipartisan affinity for the federal war on drugs produced the 2005 Gonzales v. Raich decision, which held that Congress had constitutional authority based on the Commerce Clause to punish via federal criminal law the "intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes."  If Congress has constitutional authority under the Commerce Clause to threaten someone with a year in federal prison simply for growing and consuming a plant on their own property in an effort to feel better (and thereby seek to avoid having to purchase health care resources from others), it is hard for me to understand why Congress lacks the authority to require someone to pay a fine if he does not purchase health insurance and yet still will consume health care resources (funded in part by the Congress) if he has an emergency medical condition.

Put more directly, whether the constitutional concern is personal liberty or limits on federal power, I think it is much harder to justify the reach of the federal drug war in Raich than to justify the reach of federal health care reform and the individual mandate.  But, sadly, while so many are energized and eager (mostly for political, not leagl reasons) for SCOTUS to strike down all of federal health care reform, so few in 2005 were energized and eager for SCOTUS to strike down the most extreme application of the federal drug war.  This is not only disappointing, in my view, but also another great example of the old aphorism "what comes around, goes around."

March 27, 2012 at 09:55 AM | Permalink

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Comments

Raich was not a close decision, and was supported by Stevens (its author)(the left), Kennedy (the middle), and Scalia (the right). I suppose there is some possiblity it will be overruled or limited if the SCOTUS strikes down the individual mandate, but I do not know a single person who thinks either of those things is at all likely.

In other words, it's time to accept the decisions liberals dislike (Raich) along with the more recent ones they like (Graham) as the way it's going to be from now on.

At some point, we really DO have to get over it.

Posted by: Bill Otis | Mar 27, 2012 10:22:25 AM

Raich is one of the most blatant examples of politics influencing the judiciary.

Posted by: NickS | Mar 27, 2012 11:01:00 AM

And if the individual mandate is struck down on grounds that Congress can't regulate inaction, part of SORNA will have to be too: the part that requires a former federal sex offender to register as a sex offender even if he is no longer on supervised release or any other type of supervision, and even if he does not cross state lines. If he fails to register, his inaction is punished, not just by a fine, but with a prison term.

Posted by: attorney | Mar 27, 2012 1:38:20 PM

The Court's recent Commerce Clause jurisprudence can be summed up this way:

Guns -good (Congress can't regulate without a direct interstate commerce nexus)

Drugs - bad (Congress can regulate without a direct interstate commerce nexus)

Violence against women - not too bad (Congress can't regulate without a direct interstate commerce nexus)

Posted by: legal realist | Mar 27, 2012 1:43:56 PM

Guns - 2nd Amendment

Posted by: Adamakis | Mar 27, 2012 1:51:24 PM

I don't like Raiche, but I also don't think it is particularly relevant to the ACA debate. Saying "there will be no market in X" and saying "You will participate in a market for Y whether you want to or not" are not the same things at all. And I don't think there's even a very good argument that health care and medical insurance are even the same market.

I do think that there would have been plenty of constitutional means for Congress to have obtained the same basic end as what the ACA is meant to accomplish, but the political price of enacting those measures would have been even greater than what was experienced and so Congress wouldn't even go there, at least not the first time round that particular mulberry bush. Just like I think there would have been several very nasty but still constitutional replacements for the Agricultural Adjustment Act at issue in Wickard v. Filburn.

Posted by: Soronel Haetir | Mar 27, 2012 2:08:06 PM

Soronel: I agree that there is a difference between Congress saying "there will be no market in X" and saying "You will participate in a market for Y whether you want to or not." But the issue in Raich is whether, after the feds say "there will be no market in X," they can then threaten to criminally punish those who make and possess their own X. There is much talk/fear that if Congress can have an individual mandate, it can also make people buy/eat broccoli. But in Raich, the Supreme Court said Congress would have the power to prevent people from growing their own broccoli for their own use on their own property.

Also, importantly in my view, nobody is threatened with prison for failing to participate in the market for Y (health insurance) in the ACA. Rather, those who seek to opt out merely must pay a fine for their decision to opt-out of this market, and that fine is used to help cover the (inevitable) costs to the feds and others that flow from this opt-out decision combined with federal mandates (signed into law by Prez Reagan, I believe) that nobody can be refused emergency services for lack of means to pay for them.

I share your view that a little clever drafting takes care of this matter: e.g., I do not know why Congress did not just say you get an extra (small) tax credit if you have health insurance so that we bribe people into the market rather than penalize them for seeking to stay out.

Posted by: Doug B. | Mar 27, 2012 2:19:48 PM

"I do not know why Congress did not just say you get an extra (small) tax credit if you have health insurance so that we bribe people into the market rather than penalize them for seeking to stay out."

Because there is no meaningful distinction between a bribe and a penalty. I've tried to stay out of the debate on these topics because my position is that Congress CAN constitutionally force people to eat the vegetable of Congress's choice. IMO the ONLY limitation on Congressional power is that stated within the Constitution itself, as hinted at by Adamakis reply above.

If Congress does not have the power to regulate, who does? To say there no authority whatsoever is not only a blatant appeal to anarchy itself but more importantly eviscerates the preamble of the Constitution to provide "for the general welfare". If health care is not providing for the general welfare, I don't know what it is.

BTW-I think the ACA is a stupid law. But I agree with Holmes on that issue. "It has given me great pleasure to sustain the Constitutionality of laws that I believe to be as bad ... to mark the difference between what I would forbid and what the Constitution permits." Amen, brother, amen.

Posted by: Daniel | Mar 27, 2012 4:31:14 PM

Prof B,

The reason for not making it a tax break is that unless it is going to be like some of the stimulus schemes where people actually got more out than they paid in taxes, it would not reach a significant slice of the population that Congress specifically hoped to snare.

Daniel,

I don't think anyone argues that even if the ACA is upheld that Congress would have the power to make you actually eat broccoli, only purchase it. Even with an upheld ACA I would expect a mandate to eat broccoli to fail under some theory of a right of personal autonomy that the courts have used to invalidate abortion laws, etc.

Posted by: Soronel Haetir | Mar 27, 2012 5:21:12 PM

Question: "If Congress does not have the power to regulate, who does?"

Answer: The states.

See, e.g., Massachusetts (Romneycare)

Posted by: lawyer | Mar 27, 2012 6:59:31 PM

@lawyer. That was a rhetorical question. There is nothing in the US Constitution that prohibits the federal government from taking on that responsibility. The power of the states to regulate health care is not exclusive to them. It might be a sound policy to let the states takes the lead, in the same way we do with education, but I have yet to hear one single solid argument why the federal government is constitutionally prohibited from doing so.

@Soronel

You can't be seriously arguing that the federal government can regulate what you eat but not what food you buy. The logic is simple. If it's legal for the government to tax and spend then it's legal for the government to force someone to spend then tax them if they don't. There is no meaningful distinction between A forcibly taking money from B (a tax) and then A spending it on health care for B and the situation where A forces B to spend the money on health care for B. Either way B is forced to spend money on health care.

The "individual mandate" is a tax raising method only for political reasons it's not called a tax. But if it walks like a duck and quacks like a duck, it's a duck.

Posted by: Daniel | Mar 27, 2012 8:49:03 PM

loved this part!

"But in Raich, the Supreme Court said Congress would have the power to prevent people from growing their own broccoli for their own use on their own property."

people in this country have given up too much of thier legal authority to twits in suits!

if someone was stupid enough to show up at hom properyt and tell me something like that... they would quickly discover i couled in fact PLANT anything i liked STARTING WITH THEM!

and i agree that one problem is what might shave it!

"And if the individual mandate is struck down on grounds that Congress can't regulate inaction, part of SORNA will have to be too: the part that requires a former federal sex offender to register as a sex offender even if he is no longer on supervised release or any other type of supervision, and even if he does not cross state lines. If he fails to register, his inaction is punished, not just by a fine, but with a prison term."


after all. almost all the courts from every level have shown themselves willing to ignor pretty much ANYTHING if it results in more punishment in a sex crime no matter how many DECADES ahve passed since the actual crime!

i'm sure they will rubber stamp this just to keep the sex offender registry up!

Posted by: rodsmith | Mar 27, 2012 9:21:05 PM

Daniel, the issue was "force people to eat the vegetable" ... the issue is not Congress having the power to regulate sale, including limiting your CHOICES as to what you can consume. It is forcing you to consume it. Except for certain narrow cases, such as vaccines or drugs for those dangerous to others, forcing people to consume things is well understood to be a violation of autonomy.

Posted by: Joe | Mar 29, 2012 10:15:14 AM

bull, we already have a legitimate so-called broccoli-mandate. except it's corn.

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Posted by: George | Apr 7, 2012 12:28:49 AM

it is hard for me to understand why Congress lacks the authority to require someone to pay a fine if he does not purchase health insurance

Posted by: Bulls Snapback Hats | Jul 6, 2012 8:09:26 AM

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