(From ScotusBlog.com, August 4, 2011)
By DAVID B. RIVKIN JR. AND LEE A. CASEY
Baker Hostetler’s David B. Rivkin and Lee A. Casey make the case for why, ultimately, the Court will find the Affordable Care Act to be unconstitutional.
The Patient Protection and Affordable Care Act (“PPACA”) presents a profound challenge to the Constitution’s federal structure. Although the Supreme Court has interpreted congressional power broadly, especially the authority to regulate interstate commerce on which Congress relied in enacting this law, the Court has also made clear that it will vindicate federalism against encroachment by either the federal government or the states. This is why the Court will almost certainly grant certiorari to review one or more of the cases filed against the PPACA, also commonly known as “ObamaCare,” and why, in the end, we believe that the statute will be unable to withstand the Court’s scrutiny.
Our federal system features national and state governments with differing but equally sovereign powers. This federalism is not some antiquated artifact of a bygone age, but a key attribute of our constitutional democracy and the primary source of protection of individual liberty. As Justice Kennedy explained in his concurrence in United States v. Lopez (1995), the federal system “was the unique contribution of the Framers to political science and political theory.” And, as he reaffirmed writing for the unanimous Court in Bond v. United States this past Term: “The Framers concluded that allocation of powers between the National Government and the States enhances freedom, first by protecting the integrity of the governments themselves, and second by protecting the people, from whom all governmental powers are derived.”
If this extraordinary dual sovereignty system is to continue performing in accordance with its design, there must be “two distinct and discernable lines of political accountability: one between the citizens and the Federal Government; the second between the citizens and the States.” As Justice Kennedy explained in his concurring opinion in Lopez,
[w]ere the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory. [Citation omitted]. The resultant inability to hold either branch of the government answerable to the citizens is more dangerous even than devolving too much authority to the remote central power.
Of course, obscuring these lines of responsibility was not merely the PPACA’s effect, but its very purpose. Congress’s goal in enacting the PPACA was to achieve near-universal health care insurance coverage. To that end, it mandated that every American who does not fall into one of several narrow exceptions must have a congressionally- prescribed level of health insurance, both for themselves and their dependents. This “individual mandate” applies regardless of any activity, commercial or otherwise, in which those affected are engaged. It is imposed on individuals simply because they are present in the United States.
In mandating that all Americans have a prescribed level of health insurance, the PPACA represents a quintessential exercise of a general police power – authority, that is, to legislate for what Congress may consider to be the public good, without some clear, non-remote connection to the regulation of interstate commerce or another of its constitutionally enumerated and limited powers. Perhaps the closest analogy is found in Jacobsen v. Massachusetts(1905), in which the Court upheld a state’s smallpox vaccination requirements. The Court explained:
The safety and the health of the people of Massachusetts are, in the first instance, for that Commonwealth to guard and protect. They are matters that do not ordinarily concern the National Government. So far as they can be reached by any government, they depend, primarily, upon such action as the State in its wisdom may take.
It is precisely this type of authority that the Supreme Court has correctly, consistently, and repeatedly held to be constitutionally reserved to the States alone. It restated this rule most recently in United States v. Comstock (2010) (internal citation omitted): “Nor need we fear that our holding today confers on Congress a general police power, which the Founders denied the National Government and reposed in the States.”
By contrast, and as the Government itself has conceded, any exercise of the power to regulate interstate commerce must necessarily be based upon the regulation of some voluntary activity that either directly or indirectly affects interstate commerce, with individuals being subjected to federal regulation only because, and insofar as, they engage in this activity, as distinct from regulating individuals simply because they exist. In order to meet this requirement, the PPACA’s advocates have been reduced to arguing that the lack of a federally-determined level of health insurance is, in and of itself, a form of regulable “activity” because it involves an “economic decision.”
But not having any particular good or service can be said to involve the very same “decision making.” We go through each and every day making such “decisions”: shall I have coffee this morning, at home or at Starbucks? Shall I drive to work or take the subway? Shall I nap this Saturday afternoon, or go to the Mall, or movies, or into the office to work? And each and every one of these “decisions” has quantifiable economic consequences and, in the aggregate, can be said to affect interstate commerce.
The Supreme Court, however, has consistently held that there must be some areas of life, even where there may be some remote economic impact, that constitutionally remain within the States’ regulatory authority alone. No permissible federal statute, at least one grounded in the Commerce Power, can eliminate the distinction between what is “truly national and what is truly local.” To date, none of the PPACA’s defenders has articulated a neutral, meaningful, and judicially-enforceable principle that would leave the individual mandate on one side of that line and any other aspect of modern human life on the other. This is because no such limiting factor exists.
The best that PPACA defenders have come up with is the notion that, in the future, Congress will impose individual purchase mandates wisely and sparingly. This myopic hope misreads congressional history. Even more disturbingly, it leaves the enforcement of the key constitutionally-prescribed protection of individual liberty entirely to the political process, since Article III courts cannot possibly adjudicate the wisdom of congressionally enacted mandates. One can only imagine the hew and cry that would arise in legal academe if a similar “let politics sort it out” approach, that left the judiciary on the sidelines, was suggested as a way of assuring compliance with the Bill of Rights.
Claims that the health care sector is unique because everyone will, at some point in life, use health care services, because this usage is unpredictable, because the potential costs may be crippling, and because some individuals fail to pay their bills (thus shifting costs to others), simply repackage policy arguments used to support universal health insurance coverage as legal ones. Even if these suppositions were true – and in fact any number of “markets” have the same characteristics, including those for shelter and transportation – it would not justify an expansion of the Commerce Power that would necessarily eliminate any area in which the states remain supreme.
In addition, of course, in order to achieve this universal coverage – to provide a mechanism whereby the millions now subject to the individual mandate can meet their new obligations – Congress has commandeered the resources and personnel of the States in violation of the New York v. United States(1992), and United States v. Printz (1997). In this regard, the PPACA requires that state Medicaid programs be expanded to cover families who are by no meaningful definition poor – the program’s true purpose was and is to assure some minimal level of health care for the neediest – and subjects those programs to a new and transformative federal regulatory structure. The states no longer have flexibility in their programs, but must now provide federally established levels of coverage and actual benefits. In other words, the PPACA transforms what was once a classic example of cooperative federalism into a vast new federal entitlement to be administered by the states.
In particular, the PPACA requires the states to provide health coverage, through their respective Medicaid programs, to tens of millions of new beneficiaries, anyone who falls within 133% of the federal poverty line – which is, for a family of four, an annual income of $29,725. These benefits must be paid for and, particularly given the current fiscal crisis gripping our body politic, suggestions that Congress will continue to fund entirely the massive new benefits it decreed from the federal fisc were and are preposterous. Taxes must be raised to pay for universal health -care coverage, and the PPACA’s backers were determined that this politically perilous task would fall to the states rather than themselves.
Yet many states, which are already in dire fiscal straits, would be unable to afford these new taxes, especially given the extent to which the federal government already imposes heavy tax burden on citizens and businesses located in such states. In this respect, the PPACA does more than just unconstitutionally commandeer state resources and personnel; it threatens to pauperize the states and, thus, is more fundamentally destructive of state sovereignty than the statutes in issue in New York andPrintz.
There also can be no better example than the PPACA of the type of impermissible federal coercion outlined by the Court in South Dakota v. Dole (1987). Suggestions by the law’s defenders that the states can simply withdraw from Medicaid are – like those that Congress will continue itself to fund fully the PPACA – equally preposterous. Medicaid spending today constitutes forty percent of all federal revenues to the states, and makes up a significant percentage of all health care spending at the retail level. Any state that actually were to withdraw from Medicaid would collapse its own local health care structure, with hospitals and individuals providers suddenly losing up to a quarter, half, or in some cases nearly all of their revenue.
Congress, of course, understands this and it does not expect that any state will be able to avoid the PPACA’s requirements by withdrawing from Medicaid. Continuing state participation is a critical and necessary part of the universal coverage Congress has legislated because, if any state were to withdraw, the PPACA provides no other mechanism whereby the poorest segments of society would be able to meet their individual mandate obligations. If ever there was a case of deliberate congressional coercion of the states, this is that case.
These are the reasons why, when the PPACA finally reaches the Court – almost certainly in its 2011-2012 Term – the law will be declared unconstitutional.
Messrs. Rivkin & Casey served in various capacities in the Ronald Reagan and George H.W. Bush administrations. They are frequent contributors to the Wall Street Journal and other publications writing on constitutional and international law issues. They are partners in Baker & Hostetler LLP, resident in the firm’s Washington, D.C. office, and serve as outside counsel to the 26 states challenging the PPACA’s constitutionality. To view the symposium in its entirety, click here.