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Government, Politics & Issues

Health care, broccoli and the free market

This article first appeared in the St. Louis Beacon, Oct. 27, 2011 - At a debate on the Affordable Care Act on Thursday, a lawyer challenging the law said it was a "blueprint for Congress replacing a free market economy with a command-control economy." Congress could even force people to buy broccoli if it can force them to buy health care, he said.

In response, the law professor defending the law said he was "impatient" with the "parade of horribles" trotted out by opponents, arguing that the individual mandate in the law fits comfortably within the commerce power that the courts have recognized since the days of Chief Justice John Marshall in the 1820s. No Congress would pass a law requiring people to buy broccoli, he added, because they would be defeated at the next election.

The exchanges occurred at a debate sponsored by the conservative Federalist Society at the Ritz-Carlton Hotel in Clayton. It pitted Gregory Katsas of the Jones Day law firm in Washington, D.C., against Douglas R. Williams, professor at Saint Louis University School of Law. Katsas won the 11th U.S. Circuit Court of Appeals decision finding the individual mandate unconstitutional. That decision has been appealed to the U.S. Supreme Court.

Former U.S. District Judge Stephen N. Limbaugh Sr. moderated the debate and injected a bit of humor, commenting he always had thought that "broccoli is carcinogenic." On a serious note, he predicted that no matter how the case turns out, "the judiciary is going to get a black eye" because it will appear as though the courts are making law, not just interpreting it.

Katsas said that Congress' power to regulate interstate commerce "cannot plausibly be understood to include" the power "to force people into commerce ... to force people who don't want to buy health insurance to buy it.... This is the first time that Congress has used its commerce power" to force people "to buy goods they don't want." 

Katsas said it is legally significant that Congress has never tried to force people to buy a product. "The Supreme Court has said that if a seemingly attractive power has not been exercised in the 200 years of constitutional history ... that is a pretty good reason to think it doesn't exist."

To uphold the health-care law, the court would have to recognize commerce powers broader than it ever had recognized before, he said. It would even have to go beyond the extremely broad commerce powers in recognized in a New Deal era case called Wickard vs. Filburn, Katsas said. In that case, the court said the federal government could regulate wheat that an Ohio farmer, Roscoe Filburn, wanted to grow for consumption on his own farm. Even though that wheat didn't enter interstate commerce, wheat grown for home consumption could affect interstate commerce, the court said.

But Katsas said the court never would have allowed Congress to force Filburn's neighbors to buy his wheat and that was the kind of power that Congress was exerting with the individual mandate.

Katsas also noted that the Supreme Court "put the brakes on" commerce powers in the 1990s when it threw out two laws that regulate non-economic activity -- the laws against guns in schools and violence against women. To Katsas, the health-care mandate is even further afield than "non-economic activity" because it is "inactivity."

An Easy Constitutional Question

Williams saw nothing so extraordinary in the law, remarking that he initially had thought that the law presented one of the "easiest" constitutional questions to answer.

He noted that health care expenditures are $2.5 trillion a year, or about 18 percent of the economy. The 50 million people who don't have health insurance receive $43 billion in health care they cannot pay for. Hospitals have to shift these costs to insurers, who then shift them to those who have health care insurance, costing the typical family $1,000 a year.

For this reason, Williams asserted, it is impossible to argue that the health-care law is not justified by Congress' commerce powers.

He noted that Congress could have responded in more centralized and draconian ways that clearly would have been constitutional. It could have enacted a single-payer model funded by tax dollars, clearly within its tax and spending powers. Or it could have passed a heartless law requiring anyone who receives medical treatment to have health insurance.

Williams said that the Supreme Court has recognized broad congressional power to achieve legitimate ends ever since Chief Justice Marshall's famous words in McCulloch vs. Maryland in 1819. In upholding the constitutionality of the Bank of the United States -- an institution seen as far more controversial than the health-care law -- Marshall wrote:

"Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional."

Williams added, "There is not a single case in the past 75 years that sustained a constitutional challenge to the means chosen by Congress to achieve a constitutionally permissible objective ...."

The gun-free schools and violence against women cases clearly involved non-economic activity, he said, but "the same claim cannot plausibly be aimed at the ACA" because of the impact on commerce.

The Supreme Court is expected to announce soon if it will hear a challenge to the health-care law. It is widely expected to agree to hear the case later this term, with a decision by summer.

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute.

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