The Constitution & The Economy

The Health Care Debate: Tone Down the Rhetoric and Take it Out of the Courts

The most controversial constitutional law issue currently facing the United States is the constitutionality of President Obama’s new health care legislation. A key component of this law is the requirement that all Americans, with narrow exceptions, either buy health insurance or pay a penalty. Those in favor of the constitutionality of the mandate argue that health insurance specifically, and medical care generally, are nationally important economic issues requiring comprehensive legislation. They also argue that the entire plan won’t work unless people are required to buy health insurance prior to getting sick. Therefore, the argument goes, Congress’ power to regulate “commerce among the states,” as well as Congress’ authority to enact laws “necessary and proper” to the execution of its enumerated powers, provides Congress the authority to pass this law.

Those who argue against the validity of the individual mandate argue that never before in our nation’s history has the federal government required private individuals to purchase a product they don’t want. Moreover, although the commerce clause allows Congress to regulate activities that substantially affect commerce among the states, it does not give Congress the authority to regulate inactivity or the decision not to buy a product.  If Congress can require people to buy health insurance, opponents argue, there will be no limit on its power, and we will no longer live in a country with a limited national government.

Two federal courts of appeals have already ruled on the merits of this controversy (and one other decided it had no jurisdiction to hear the case). Of the six judges who have ruled, three believe the mandate is constitutional and three believe it is unconstitutional. All the judges wrote long, thoughtful opinions wrestling with the same precedents, text, and history, but were divided on the appropriate outcome.

Outside the courts, the rhetoric on both sides of the health care debate has gotten completely out of hand.  Republicans and Democrats are talking past each other not with each other, and our local and national politics are being adversely affected by this controversy.

Both sides would do well to understand and reflect on the other’s point of view. Democrats and those on the left need to see that the individual mandate is offensive to many Americans for legitimate reasons. Whether in actual practice the mandate is different than many other taxes imposed by Congress, it feels and looks different. The federal government is coercing people to but a product they may not want to buy. It is difficult, if not impossible, to find a similar precedent in all of American history. Regardless of its real-world applications, or its constitutionality, this individual mandate threatens many people, because if Congress can do this, what can’t Congress do? These are serious points worthy of discussion and should not be casually dismissed.
On the other side, Republicans and those on the right should stop talking about how the “government is taking over health care.”  The new plan does not nationalize anything. Private insurance companies will still make huge profits (probably bigger than they make now), and the vast majority of Americans will still receive their health care from private doctors and nurses, not people on the federal payroll. The exaggerated political claims about “socialism” do not advance the debate and neither do unsubstantiated claims that the new program will be a “job killer.”
One place we should stop looking for answers to these hard policy questions is the Supreme Court. The lawsuits challenging the mandate are expensive and time consuming, and will ultimately place a veto power in the hands of the branch of government least competent to solve our problems. The constitutional issues are murky at best (as evidenced by the current split on the issue by lower court judges), and the Court will inevitably decide them based on personal preferences and politics, not pre-existing law.

President Obama’s health care legislation was debated in Congress for months and discussed in town hall meetings and other political venues throughout the United States. Although our political process is far from perfect, the people felt strongly about this issue, they made their feelings known to their elected representatives, and those representatives fought and negotiated with the President of the United States. Those who lost that political battle are still trying to repeal the law. I honestly do not know whether the individual mandate is good or bad for our country, but what I do know is that, in the end, the decision whether or not the individual mandate is constitutional or not is much more of a public policy question than a legal question. Therefore, it should be resolved by public debate and elections, not by unelected and life-tenured federal judges.

Eric J. Segall is a Professor of Law at Georgia State University College of Law and the author of the forthcoming book Supreme Myths: Why the Supreme Court is not a Court and its Justices are not Judges.