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With health-care case, Supreme Court stands at constitutional crossroads

This article first appeared in the St. Louis Beacon, March 23, 2012 - Chief Justice John G. Roberts and the U.S. Supreme Court arrive at a constitutional crossroads when they take up the Affordable Care Act Monday. They can turn their backs on the past 80 years of history by sharply reducing two of the Constitution's prime sources of national power. Or they can allow the nation to proceed along the road charted by the New Deal and the Great Society.

In six hours of oral arguments spanning three days, the Supreme Court will take up the fundamental issue that has divided the nation since the Revolutionary War: how to divide power between the states and the national government. The Constitution itself grew out of a belief that the national government didn't have enough power to regulate commerce. The Civil War grew out of a fight between states' rights and national power. The New Deal and the civil rights movement were the modern incarnations of that same struggle.

The issue with all of the air time is the individual mandate requiring nearly all Americans to buy health insurance. But during Monday's oral argument, the court first will take up the question of whether it even has the jurisdiction to decide on the mandate.

A 19th-century law, the Anti-Injunction Act, states that people can't challenge taxes until the taxes have been collected. If the penalty charged people for not buying health insurance is a tax, then the courts don't yet have jurisdiction because the mandate does not go into effect until 2014.

President Barack Obama and supporters of the law were careful to say, for political reasons, that the penalty was not a tax. But the court could decide the penalty is a tax, given that it would be collected by the Internal Revenue Service on April 15.

Day 2 is the centerpiece of the argument: Assuming that the court has jurisdiction of the mandate, does Congress' power to regulate interstate commerce give it power to require nearly everyone to buy health insurance?

Congress' commerce power has been used through the years to justify all manner of federal legislation, including the Civil Rights Act of 1964. Perhaps the furthest reach of commerce power was in the 1940s when the court ruled that the federal government could regulate Roscoe Filburn's 23 acres of wheat grown for personal use because it had a small effect on the stream of interstate commerce.

Opponents of the health-reform law say that the individual mandate goes a step further. It would be like forcing Filburn to plant the wheat, something beyond Congress' commerce power. If Congress can force people to buy health care, it could go so far as to force them to eat broccoli or to join a gym to improve their health, the critics say.

Supporters say that this takes the argument to an absurd length. Health care is one-sixth of the U.S. economy. Clearly, Congress' power to regulate commerce enables it to adopt a program for regulating such a big part of the economy.  The health-care mandate is crucial to any such regulation because it stops the cost shift in which health costs of the uninsured are paid for by those with insurance.

One irony is that just about everyone agrees that Congress has authority under its taxing power to enact an individual mandate, but Obama didn't want to call the penalty a tax.

On Wednesday morning the court takes up the question of whether the whole law will have to fall if the individual mandate is ruled unconstitutional.  The issue is called severability. Could an unconstitutional mandate be severed from other parts of the law, such as the requirement that young people be allowed to stay on their parents' medical insurance until they are 26?

Under the doctrine of judicial restraint, the Supreme Court tries to leave standing as much of a law as possible. But it has to address the question of whether Congress would have passed the law if it did not contain the unconstitutional provision. If Congress would not have passed the law without the provision, then the whole law must fall.

Finally, the oral arguments end with what some constitutional law experts have called the "sleeper issue" -- whether Congress' power to spend money for the general welfare gives it authority to require states to expand their Medicaid coverage to include more of the near-poor.

Congress' spending power is one of the most potent sources of national power. Congress attaches all sorts of conditions, strings, to its grants. Theoretically, recipients of grants can always refuse to take the money if they don't like the strings. But those challenging the Medicaid expansion say that the typical state receives $1 billion in Medicaid money, making it impossible to turn down the money.

If the Roberts court were to cut back on both Congress' commerce and spending power, it would diminish two of the strongest wells of national power. Bruce La Pierre, a Washington University law professor, says the result would be a weakened government more like the European Union.

Roberts has stressed in his public statements the importance of consensus and precedent. For that reason, many constitutional experts expect him to vote to uphold the health-care law. Even if Roberts had some qualms, he might want to join the majority so that he can assign himself the opinion. That would enable him to limit any expansion of federal power.

Most constitutional law experts believe that the court will uphold the law because it is most consistent with the precedents of the past eight decades since the New Deal.

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. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.

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