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Overturning Health Reform: A Cautionary Tale

Shortly after the Patient Protection and Affordable Care Act – commonly known as the health care reform act – was enacted, at least 14 attorneys general, led by Florida’s Bill McCollom, filed suit to overturn the law. Most legal experts responded by noting that while the lawsuits might make for good politics, they are on shaky legal ground.

The claims they raise, that the new health care reform act exceeds federal authority and tramples on states’ rights flies in the face of more than 60 years of settled constitutional doctrine. That is precisely why these lawsuits, should they be successful, might not please the attorneys general’s constituents – and not only because they may come to appreciate the reforms brought by the new act.

A judicial defeat of health care reform, especially by the Supreme Court, would require reversing or at least questioning much of the settled precedent on which our post-New Deal jurisprudence stands. That means that however narrowly the Court tries to craft an opinion striking down health reform, a fissure would be created. The constitutional principles – and case law – that permit the federal government to establish and mandate numerous popular and widely accepted federal programs would be undermined.

Since the New Deal (though also in earlier eras), the Supreme Court has been adamant that Congress’ power to regulate interstate commerce (a category that assuredly includes health insurance) is broad and robust. When acting to regulate interstate commerce, Congress can override state laws. Thus state laws sanctioning medical marijuana fall before Congressional drug laws even when applied to pot that is grown purely for in-state use.

Moreover, as to the so-called mandate, the Supreme Court has long held that laws regulating economic activities are subject to the weakest, most deferential level of judicial review, the so-called rational relationship test, as long as they do not discriminate against a protected class or infringe upon a fundamental liberty, and there is no recognized fundamental right to be uninsured.

Indeed, Congress frequently imposes tax penalties or credits based upon whether or not an individual purchases an item or service that Congress wants to encourage or discourage. And at end of the day, despite the popular talk about a mandate, all that the Patient Protection and Affordable Care Act will do in 2014 is assess a tax penalty on people who choose to be uninsured. There are no criminal sanctions for failing to be insured (the act expressly forbids them) and no one is actually compelled to be insured. Everyone would remain free to pay the penalty in lieu of purchasing far more expensive health insurance, just as today those of us offered employer-provided health insurance remain free to forgo the significant tax advantages that result from opting to have such insurance.

Yet despite the seemingly settled nature of the legal precedent, the outcome of the state lawsuits should not be presumed. The Supreme Court, after all, is free to reverse its own precedents, as it has done frequently in recent terms; recall the recent decision prohibiting the regulation of corporate campaign funding. Moreover, both the states’ rights and libertarian views expressed by the attorneys general reflect not only the zeitgeist of this era of tea parties, but also a longer-lasting counterrevolution in constitutional law propelled by prominent jurists, such as Supreme Court Justices Antonin Scalia and Clarence Thomas, and endorsed by the influential Federalist Society.

This counterrevolution argues that “original intent” rather than precedent should be the guidepost for constitutional analysis and seeks to “return” the nation to what they believe was the founders’ Constitution, one with a very limited federal government. Hence it is a counterrevolution ideally suited for the attorneys general’s litigation. And possibly, just possibly, their lawsuits will ride that wave and find a receptive judicial ear.

That may please some of health care reform’s most ardent foes as well as the most zealous constitutional originalists. But its ramifications will surely extend beyond health care reform. A judicial victory for health reforms foes would cast into doubt a wide swath of highly popular, and previously assumed to be constitutional federal programs, including Medicaid and Medicare (and what is Medicare if not a health insurance mandate?). But will it please Bill McCullom’s Florida constituents when they learn that his lawsuit might be the first step to ending their Medicare benefits?

Wendy E. Parmet is the George J. and Kathleen Waters Matthews Distinguished University Professor at Northestern University School of Law and director of the dual J.D/M.P.H. program with Tufts University School of Medicine. 

Published on: April 14, 2010
Published in: Health Care Reform & Policy

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