Is Health-Care Reform Unconstitutional (Part II)

[WSJ_law_blog]

Whether health-care legislation is constitutional: a topic so nice, we blogged it twice . . . in one week!

Our earlier post focused on a column that ran in the WSJ’s opinion pages earlier this week, written by former New Jersey state judge Andrew Napolitano. Napolitano’s argument: that the constitution’s Commerce Clause doesn’t afford Congress the power to regulate health care. Reaction to Napolitano’s argument was pointed and swift, both on this blog and elsewhere in the Web-o-sphere.

For one reason or another, the folks at the WSJ’s editorial page have decided to give the topic another go. The argument was elucidated this time in a piece out Friday by David Rivkin and Lee Casey, two former lawyers from the Bush I administration, both of whom now work at Baker & Hostetler in D.C. and often team up to write at the National Review and elsewhere.

Rivkin and Casey’s argument is a bit more, well, narrowly tailored (to borrow from the language of con-law lawyers) than is Napolitano’s. Their point: that the requirement in the plan laid out by Max Baucus (D-MT) (pictured) that every American have health insurance makes current proposals unconstitutional. Not just unconstitutional, mind you, but “profoundly unconstitutional” (emphasis ours).

On the requirement, Rivkin and Casey state that such a requirement “is the only way to fund universal coverage without raising substantial new taxes. In effect, this mandate would be one more giant, cross-generational subsidy—imposed on generations who are already stuck with the bill for the federal government’s prior spending sprees.”

The authors say that while the Supreme Court has “construe[d] the commerce power broadly . . . there are important limits.” In response, write Rivkin and Casey, “health-care legislation backers have, in response, “framed the mandate as a “tax” rather than a regulation.” The authors continue:

Taxation can favor one industry or course of action over another, but a “tax” that falls exclusively on anyone who is uninsured is a penalty beyond Congress’s authority. If the rule were otherwise, Congress could evade all constitutional limits by “taxing” anyone who doesn’t follow an order of any kind—whether to obtain health-care insurance, or to join a health club, or exercise regularly, or even eat your vegetables.
. . .
Since the 1930s, the Supreme Court has been reluctant to invalidate “regulatory” taxes. However, a tax that is so clearly a penalty for failing to comply with requirements otherwise beyond Congress’s constitutional power will present the question whether there are any limits on Congress’s power to regulate individual Americans. The Supreme Court has never accepted such a proposition, and it is unlikely to accept it now, even in an area as important as health care.

LBers, now that you’ve gone and gotten yourselves all versed up on the Constitution’s Article I, Sec 8., let’s keep the conversation going. Are the health-care reformers on shaky ground on this point, or does the Constitution allow such regulation?