The Federal Health Care Law

THE FEDERAL HEALTH CARE LAW:

THE COMMERCE CLAUSE VERSUS THE TENTH AMENDMENT

In 2009, the United States Congress enacted sweeping health care reform.  The most controversial provision of the health care law is the requirement that by 2014 everyone have health insurance.

The constitutional debate over the health care law will play out before the Supreme Court on March 26-28 when the Court will hear six hours of oral argument.  This is highly unusual because the Court rarely grants more than one hour of oral argument.  The Court publishes all opinions by the end of the term, which means that we will know, by July 4, 2012, whether the health care law is (1) fully constitutional, (2) constitutional in part and unconstitutional in part, or (3) unconstitutional “on its face,” meaning under any set of facts.

The constitutional show down is between the Commerce Clause and the Tenth Amendment.  Generally, Congress has broad power to control conduct in federally owned or controlled territory.  For example, Congress controls the post offices because, even through they are in a given state, they are federally owned and controlled territory.  The question is to what extent can Congress control conduct in state owned or controlled territory.  The Framers of the Constitution gave Congress 17 enumerated powers and the ability to enact laws that are “necessary and proper” to carry out the enumerated powers.  One of the 17 enumerated powers is the Commerce Clause, which provides that Congress shall have the power “to regulate Commerce with foreign nations, and among the several States and with Indian Tribes.”  Historically, the Commerce Clause was interpreted to grant broad power to Congress.

The Commerce Clause and all of the 17 congressional enumerated powers must be balanced against the Tenth Amendment, which provides that “the powers not delegated to the United States by the Constitution, not prohibited by it to the States, are reserved to the States respectively, or to the people.”  When I was in law school, the Tenth Amendment was generally considered a “dead letter,” because the Tenth Amendment never prevailed over the Commerce Clause.  However, as the Supreme Court became more conservative, that balance began to change.  Since 1995, there have been nearly a dozen cases involving the clash between congressional power, under the Commerce Clause and the Due Process Clause of the Fourteenth Amendment, and the Tenth Amendment.  Generally speaking, those who favor a big federal government want a broad Commerce Clause and a small Tenth Amendment, and those who favor a small federal government want a small Commerce Clause and a broad Tenth Amendment.

What is the focus of the constitutional confrontation before the Supreme Court in the context of the health care law?  Under the health care law, everyone will be required to purchase health insurance by 2014.  Those taking the position that the health care law is unconstitutional argue that Congress has exceeded its authorized power under the Commerce Clause.  They argue that the law goes beyond mere regulation of commerce when the law requires a person to participate in interstate commerce, against his or her will, by requiring that person to purchase health insurance.  The counter argument on the side of constitutionality is that everyone, of necessity, is a consumer of health care and a consumer of some form of health insurance, and health care and health insurance are inextricably intertwined with interstate commerce.  Accordingly, Congress has the power to regulate health care and regulate the health insurance industry by requiring everyone to participate in that process.