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Analysis: Cunningham amendment to opt out of federal health care law is probably unconstitutional

This article first appeared in the St. Louis Beacon, Dec. 10, 2009 - State Sen. Jane Cunningham's constitutional amendment to nullify a proposed federal health mandate would likely be unconstitutional, legal experts say. Cunningham is a Republican from west St. Louis County.

The dominant view among legal scholars is that Congress has the power to enact the proposed federal health-care law and that a state law or constitutional provision passed to block it would be thrown out as unconstitutional. Missouri could no more opt out of the health bill than it could opt out of federal minimum wage laws, experts say.

Eugene Volokh, the libertarian law professor from UCLA, told an audience at the conservative Heritage Foundation this week that the health mandaate is probably constitutional, even though he personally opposes it as a matter of policy. Volokh's constitutional argument rests on one of the most important legal precedents in American history and on a recent U.S. Supreme Court decision upholding Congress' power to ban marijuana in states that have legalized medical marijuana. Here's the argument:

Congress has power under the powerful commerce clause to regulate the health-insurance industry, which is a major part of the U.S. economy. Under the famous McCulloch vs. Maryland decision of 1819 -- where the court upheld the constitutionality of the much-despised Bank of the United States -- Congress has power under the "necessary and proper" clause to employ useful means to achieve its ends. The requirement that individuals buy health insurance or pay a penalty is a means necessary and proper to the legitimate end of regulating the health-insurance industry.

It is "quite plausible," Volokh said, "to say that as long as you are going to have regulation of insurance ... that to create a risk pool you have to have people participate in it. ... Under McCulloch vs. Maryland, it is necessary and proper ... in the sense of useful, calculated toward the end that Congress has under the commerce clause."

Volokh likened the legal issue to the 2005 medical marijuana case, Gonzales vs. Raich, where the U.S. Supreme Court ruled that Congress had the power to enforce national anti-drug laws even where they interfered with California's medical marijuana program.

The medical marijuana case reaffirmed a Supreme Court precedent from the Depression era, that recognized almost unlimited congressional power under the commerce clause. In that case, Wickard vs. Filburn, the court ruled that Congress could regulate the wheat that Roscoe Filburn grew for the chickens on his farm even though the wheat never made it into interstate commerce.

Roger Goldman, a law professor at Saint Louis University Law School, said that Congress also has taxing and spending powers that could provide a constitutional basis for the health law. But he agreed that "commerce should be enough."

Goldman said that the health bill does not present a 10th amendment problem. The 10th amendment says that any power not delegated to the federal government remains with the states. But the health bill isn't regulating the state.

On occasion, the court has found that the federal government overreached when it commandeered state officials to perform federal enforcement functions or when it interfered with core state functions.

For example, the Brady gun law had required police in the states to enforce the federal law. The Supreme Court said in Printz vs. U.S. that drafting the police of the 50 states to enforce the federal law went too far.

But Goldman points out that the health-care mandate does not regulate the state. "How does the law differ from other congressional laws that have a direct impact on the individual?" he asked in an email. "For example, the federal income tax, Social Security taxes, the military draft, laws prohibiting discrimination on the basis of race."

Joel Goldstein, also of Saint Louis University law school, agreed. He wrote in an email: "Even without its interstate character, health care would seem to be an economic activity (that) Congress can regulate under ... Raich and the mandate would seem to be reasonably adapted to the regulation. Unlike ... Printz, the federal law is generally applicable, not commandeering a state legislative body or executive official to take some action. This (Cunnngham's constitutional amendment) seems more akin to a state legislating (or providing by constitutional amendment) that employers in the state did not have to abide by the federal minimum laws. Such a measure, like this one, would seem to violate the supremacy clause."

Even though the Cunningham proposal is a constitutional amendment, a federal law can trump a conflicting provision of a state constitution. If the federal health care legislation allowed states to opt out of some part of the plan, then states could refuse to participate in that part of the plan.  But that would require only a state law, not a state constitutional amendment.

Cunningham's position is not without legal support. (Click here to read George Will column on issue.) Randy Barnett, a Georgetown professor speaking at the Heritage Foundation, said that if Congress can pass the health mandate, it can do anything. "There is a difference between regulating people when they engage in commerce versus regulation when they don't engage in commerce," he said. An individual's refusal to buy health care should not subject the individual to the government's commerce powers, he said.

Bills like Cunningham's have been introduced in about half a dozen states. Cunningham's measure, SJR 25, reads, "Upon voter approval, this constitutional amendment provides that no law shall compel a patient, employer, or health-care provider to participate in any government or privately run health-care system, nor prohibit a patient or employer from paying directly for legal health care services."

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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