Category Archives: healthcare

A triumph and tragedy for the law

To uphold the individual mandate as an exercise of the taxing power, the majority overlooked the natural meaning of the statutory text.


The Supreme Court’s ObamaCare decision is both a triumph and a tragedy for our constitutional system. On the plus side, as we have long argued in these pages and in the courts, the justices held that Congress’s power to regulate interstate commerce cannot support federal requirements imposed on Americans simply because they exist. The court also ruled that there are limits to Congress’s ability to use federal spending to force the states to adopt its preferred policies.

However, in upholding ObamaCare’s mandate that all Americans buy health insurance as a kind of “tax,” the court itself engaged in a quintessentially legislative activity—redrafting the law’s unambiguous text. The court struck down ObamaCare as enacted by Congress and upheld a new ObamaCare of its own making.

Congress grounded ObamaCare’s individual insurance coverage mandate in its power to regulate interstate commerce, supported by the Constitution’s Necessary and Proper Clause, which permits Congress to make all laws “necessary and proper” for carrying into effect its various enumerated powers. It relied on these constitutional provisions so as to avoid the clear political costs involved in simply raising taxes to create the universal health-care system ObamaCare’s backers really desired.

ObamaCare defenders, in the courts of law and public opinion, have been pressing these points for the last two years, and they lost. A majority of justices ruled that the Commerce Clause, even in conjunction with the Necessary and Proper Clause, cannot support federal regulation of “individuals as such, as opposed to their activities.”

This is a profound and highly significant reaffirmation of the Constitution’s federalist structure, which assigns only limited and enumerated powers to the federal government and reserves the power to enact broad health and welfare regulations to the states. Here, the court clearly rebuked Congress, sending a very clear message: There are judicially enforceable limits to your power.

Equally important, the court also ruled that the federal government cannot use its spending power to coerce the states into adopting federal programs and requirements. As originally enacted, ObamaCare required the states to expand their Medicaid programs so that they would cover those with incomes far above the federal poverty line. This would have shifted untold costs to the states, with the federal government paying these costs only for a limited time. The alternative that states faced was the loss of all federal Medicaid funding. Seven justices ruled that, applied in this manner, the law was unconstitutional and rewrote it to avoid this outcome. As a result, this federal hammer can no longer be used to force the states to support ObamaCare’s Medicaid expansion.

This is significant. Since deciding Steward Machine Co. v. Davis in 1937, the Supreme Court has maintained that the Constitution limits Congress’s power to coerce the States through federal grants, but it has never identified the boundaries between the permissible use of federal funding as a carrot and unconstitutional federal coercion. The ObamaCare decision began to draw those lines, putting real limits on Congress’s ability to use the states as simple administrative units to carry out its will.

On the debit side, the court upheld ObamaCare’s individual mandate as an exercise of the federal taxing power. The law was not passed as a tax, and both the president and ObamaCare’s congressional supporters persistently proclaimed that they were not raising taxes. The court itself was forced to concede that “the statute reads more naturally as a command to buy insurance than as a tax.”

In order to reach its conclusion that the mandate was a tax, and avoid the political fallout of striking down President Obama’s signature achievement in an election year, the court did more than overlook the statutory text’s natural meaning. It ignored congressional enactment of the mandate in a separate provision from any penalty. As Justices Scalia, Kennedy, Thomas and Alito wrote in dissent, “to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.” The perhaps unintended irony of this judicial edit is that politicians who wish to impose this type of mandate in the future will no longer be able to claim that they are not imposing a new tax.

The court’s ObamaCare opinion presents an uncertain legacy. The court reaffirmed and clarified the constitutional limits on Congress’s power to regulate commerce and to spend money. Yet the individual mandate and the law’s Medicaid expansion were upheld through judicial copyediting that the court has always found to be beyond its own constitutional power. The fact that this happened in the context of a hotly contested statute raises questions about the court’s ability to remain immune to political pressures.

Messrs. Rivkin and Casey are lawyers in the Washington, D.C., office of Baker & Hostetler LLP. They pioneered the constitutional arguments against the individual mandate and represented 26 states in challenging ObamaCare before the trial and appellate courts.

A version of this article appeared June 29, 2012, on page A13 in the U.S. edition of The Wall Street Journal, with the headline: The Court Rewrites ObamaCare.


Health Care Reform v. the Founders


Editor’s note: This op-ed was originally published on September 29, 1993.

The president has announced his health care plan, and congressional Republicans have announced theirs. Although the details are still murky, the plans seem to share one fundamental assumption — that every man, woman and child in the U.S. must participate in the system. The healthy must subsidize the sick; the young must subsidize the old; the not so old must subsidize the very young. If this redistribution of wealth is to work without new taxes (and no one wants to admit that new taxes might be necessary), then everyone must be in the plan.

Where, exactly, does the U.S. government get the power to require that every one of its citizens must participate in a government-sponsored health care plan? Ask this of a health care reformer and he, or she, will sniff, think a moment, and (if legally trained) will immediately utter the two most magic words in late 20th century constitutional jurisprudence—Commerce Clause.

If the legality of a health care package featuring federally mandated universal participation is litigated (and we can bet it will be), and the system is upheld, it will mark the final extension of this originally modest grant of federal authority. Thereafter, Congress will be able to regulate you not because of who you are, what you do for a living, or whether you use the interstate highways, but merely because you exist.

This was not, of course, the original plan. One of the fundamental tenets underlying the Constitution of 1787 was that the federal government was a government of limited powers. Unlike the states, which had more general authority to regulate their citizens, the federal government was to be limited to those powers found within the four corners of the Constitution. In particular, Congress could exercise only that authority specifically granted to it by the people and the states.

There was a list — and not a very long list. One of the powers enumerated on it was the “Power . . . To regulate Commerce with foreign Nations and among the several States.” One of the most serious deficiencies of the first union under the Articles of Confederation was that states were able to erect barriers to trade with other states and foreign countries. The Commerce Clause was added to the Constitution so that Congress could create the original North American free trade zone — within the U.S. itself.

The commerce power in the battered Constitution that emerged from the 1930s and 1940s, however, was very different. After being routed by President Roosevelt and his Congress, the Supreme Court fled to the Commerce Clause, finding there a way to avoid treading upon the vital interests of a Congress determined to regulate the economic relationships of the citizenry, not to mention its health, welfare and safety. In Wickard v. Filburn, in 1942, the court went so far as to rule that Congress could prevent a farmer from growing wheat for his own consumption. Too much of an effect on commerce, reasoned the court — this fellow gobbling wheat he grew himself. After all, he could have purchased it interstate. On that day, the Framers’ ghosts wept.

Of course, the commerce power was still, in theory, limited. In Wickard, after all, the man at least was a farmer, someone engaged in growing and selling foodstocks. Commerce was in the air, somewhere. And the court continued to pay at least lip service to the notion that the federal government is a government of limited authority, and that Congress can regulate only based upon some nexus to interstate commerce — or in reference to one of its other enumerated powers, like the power to tax and spend. So long as Congress provides a reasonable explanation of that nexus, its actions will be upheld. The limits of the contemporary Commerce Clause are not very clear, but most would agree there are some limits.

The final test, however, has come. In the new health care system, individuals will not be forced to belong because of their occupation, employment, or business activities — as in the case of Social Security. They will be dragooned into the system for no other reason than that they are people who are here. If the courts uphold Congress’s authority to impose this system, they must once and for all draw the curtain on the Constitution of 1787 and admit that there is nothing that Congress cannot do under the Commerce Clause. The polite fiction that we live under a government of limited powers must be discarded — Leviathan must be embraced.

The implications of this final extension of the commerce power are frightening. If Congress can regulate you because you are, then it can do anything to you not forbidden by the handful of restraints contained in the Bill of Rights. For example, if Congress thinks Americans are too fat — many are — and that this somehow will affect interstate commerce — who’s to say it doesn’t? — can it not decree that Americans shall lose weight? Indeed, under the new system, any activity that might increase the costs of health care might be regulatable.

If individuals can be regulated because of their health, then surely any activity with an impact on health also can be regulated. Perhaps one day it will be decided that every member of the new health care system — everybody — will be tested for the HIV virus. After all, your HIV status affects your health, the costs of health care, and, thus, interstate commerce. If a mandatory federal health system is justified under a Commerce Clause analysis, then any regulation of any health-related activity also can be justified.

Would the Bill of Rights intervene? Maybe, and maybe not. There is no specific right to eat when and how you like. There is no specific right not to undergo medical testing. The right against unreasonable searches and seizures? Perhaps. What about the “right to privacy”? It’s been overused, but maybe. The Supreme Court might well look into its penumbra crystal and find the necessary limitations — and maybe it won’t.

One thing is clear. Once Congress’s power is extended to every individual not because of his activities, but because he is, limits on its power will depend upon the fortitude and creativity of the courts. No American, whatever his policy views on health care reform, should rejoice at the disappearance of the last fragments of the principle that the federal government is one of limited powers. It is indeed ironic, and sad, that as the rest of the world is discovering the virtues of limiting their governments, the U.S. seems hellbent on unleashing its own.

Mr. Rivkin, an adjunct fellow at the American Enterprise Institute, served in the Reagan and Bush administrations. Lee A. Casey, also a former Reagan and Bush official, collaborated on this article.


ObamaCare ruling 2012: Who’s laughing now?

“Congress has crossed a fundamental constitutional line.”

United States Supreme CourtAs the nation awaits one of the most important Supreme Court decisions of our time, efforts to sway the decision toward upholding ObamaCare are not in short supply. Some have the thin veneer of news articles; others carry the weight of admonition by the President himself. One can only conclude that such efforts are based on a sober assessment that overturning at least one linchpin of the law is a very real possibility.

The editors of this newsletter recall vividly how the efforts of Messers Rivkin and Casey to call attention to the unconstitutionality of the 2010 healthcare law were met with derision by professors, legislators, and, unsurprisingly, reporters and news “analysts.”  The hearty laughs and chuckles have long since ceased.

Lest readers believe that the legal argument against ObamaCare is grounded in political ideology, the editors of this newsletter present excerpts from articles penned by Rivkin or Casey to summarize the 26 states’ case against the federal government and to emphasize what’s at stake for the nation. —Editors

ObamaCare mandates that every American, with a few narrow exceptions, have a congressionally defined minimum level of health-insurance coverage. Noncompliance brings a substantial monetary penalty.

·  The ultimate purpose of this “individual mandate” is to force young and healthy middle-class workers to subsidize those who need more coverage.
·  Congress could have achieved this wealth transfer in perfectly constitutional ways. It could simply have imposed new taxes to pay for a national health system. But that would have come with a huge political price tag that neither Congress nor the president was prepared to pay.

Instead, Congress adopted the individual mandate, invoking its power to regulate interstate commerce. The uninsured, it reasoned, still use health services (for which some do not pay) and therefore have an impact on commerce, which Congress can regulate.
Congress’s reliance on the Commerce Clause to support the individual mandate was politically expedient, but constitutionally deficient. Congress’s power to regulate interstate commerce is broad but not limitless.

Congress has crossed a fundamental constitutional line. Neither the fact that every individual has some discernible impact on the economy, nor that virtually everyone will at some point in time use healthcare services, is a sufficient basis for federal regulation.

Nowhere in the Constitution can we find a provision to support the notion that “the ends justify the means.”

At stake are the Constitution’s structural guarantees of individual liberty, which limit governmental power and ensure political accountability by dividing that power between federal and state authorities.

Upholding ObamaCare would destroy this dual-sovereignty system, the most distinctive feature of American constitutionalism.

The arguments advanced by ObamaCare’s defenders are flawed because they admit no judicially enforceable limiting principle marking the outer bounds of federal authority.
Messrs. Rivkin and Casey are lawyers who served in the Justice Department during the Reagan and George H.W. Bush administrations. They represented the 26 states in their challenge to ObamaCare before the trial and appellate courts.

The contents of this email include excerpts from an article that appeared March 21, 2012, with the headline: The Supreme Court Weighs ObamaCare.

Up or Down on ObamaCare: Texas Attorneys to Hear Live Debate

David Rivkin and Harvard Law Prof to Face Off June 15

Washington D.C. – As the U.S. awaits the Supreme Court decision on the Affordable Care Act (ObamaCare), the various factions pro and con continue to line up and weigh in on both whether and how the controversial law will stand.  David Rivkin, who led the 26-state case against the U.S. government in Florida’s 11th District Court (whose judge, Roger Vinson, ruled in the plaintiffs’ favor, will meet Harvard Law professor Einer Elhauge, author of amicus briefs that assert the legality of the individual mandate.  The debate is scheduled for 9:00 am, on Friday, June 15, at the Texas Bar Association’s Annual Conference in Houston.

For more information on the debate and the conference, visit

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Debate on ObamaCare’s individual mandate on display for attorneys

Constitutional Attorney David Rivkin to debate Harvard Law Professor at Texas Bar Association Meeting

The final word on the Obama administration’s signature health care law has yet to be spoken.  As the Supreme Court decision on the constitutionality of the Patient Protection and Affordable Care Act (aka ObamaCare) looms, organizations throughout the nation are lining up speakers and events to present their opinions—whether a pre-decision debate that might sway an undecided justice, or a post-mortem discussion on how the justices got it right or wrong.  Regardless of when the Supreme Court decision is handed down, the June 15 Texas Bar Association debate on the topic, the interchange promises to be both lively and substantive.

David Rivkin, an appellate attorney whom the Wall Street Journal credits with initiating the question of ObamaCare’s constitutionality and who represented the 26 states in the Florida health care lawsuit, will debate Harvard Law professor Einer Elhauge, who has filed amicus briefs asserting the legality of ObamaCare’s individual mandate.  The debate is scheduled for 9:00 am, on Friday, June 15, at the Texas Bar Association’s Annual Conference in Houston.

About The Texas Bar Association

The mission of the State Bar of Texas is to support the administration of the legal system, assure all citizens equal access to justice, foster high standards of ethical conduct for lawyers, enable its members to better serve their clients and the public, educate the public about the rule of law and promote diversity in the administration of justice and the practice of law.

The Texas Bar Association is the fifth largest organization of lawyers in the United States. The State Bar Act, adopted by the Legislature in 1939, mandates that all attorneys licensed to practice law in Texas be members of the State Bar. For more information, visit

Overturning ObamaCare isn’t ‘Judicial Activism’

If the Supreme Court upholds purchase mandates in health care, they will become a mainstay of federal regulation throughout the U.S. economy.


Since the Supreme Court’s historic three-day ObamaCare hearings in late March, the president and his supporters have tried to pressure the Justices into upholding that law, asserting that any other decision would overstep the court’s constitutional bounds. Ruling against ObamaCare would not be what the president called illegitimate “judicial activism,” but an appropriate exercise of the Supreme Court’s core constitutional role.

“Judicial activism” is one of those agreeably ambiguous terms that can support almost any criticism of the courts. Under our constitutional system, judicial activism entails judges rewriting rather than interpreting the laws, exercising “will instead of judgment,” in Alexander Hamilton’s phrase.

Measuring a federal statute like ObamaCare against the Constitution and finding it wanting is not judicial activism. This, as Chief Justice John Marshall noted in the early (1803) and much-quoted Marbury v. Madison case, “is of the very essence of judicial duty.”

This duty is not properly limited, as ObamaCare’s increasingly desperate supporters claim, to judicial enforcement of the Bill of Rights and other affirmative prohibitions on congressional power. The Constitution must be interpreted and applied as a whole, and its basic architecture—in particular the limitations inherent in the enumerated nature of Congress’s powers—is just as critical to the defense of individual liberty as are any of the other rights it guarantees.

The Framers assumed that the Constitution’s federalist architecture, dividing power between the federal government and the states (creating a “vertical” separation of powers to complement the “horizontal” separation among the three federal branches), would be the primary defense against governmental overreaching. Indeed, Hamilton argued in the Federalist Papers (No. 84) that adoption of a Bill of Rights “would even be dangerous” for the very reason that “[t]hey would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted.”

Accordingly, the Supreme Court always has measured federal statutes against both the Bill of Rights and the Constitution’s structural protections. It has struck down laws found wanting in either case.

To uphold ObamaCare’s insurance-purchase mandate as a legitimate exercise of Congress’s power to regulate interstate commerce, the court must find some neutral, judicially enforceable limiting principle that would maintain the Constitution’s balance of power between federal and state authority. That principle must keep the power to regulate interstate commerce from morphing into a general power simply to regulate the citizenry. The court has always ruled, correctly, that only the states have such a general “police” power under our Constitution.

No such limiting principle has yet been suggested because none exists. The best government lawyers have done is to claim that Congress imposed the insurance mandate as a means of regulating how people (especially the young and healthy) will pay for the health care they will someday use. That Congress would regulate Americans as future market participants and, having chosen insurance as the regulatory mechanism, it can require everyone to buy that insurance now. This is how insurance works—it must be obtained before the covered eventuality occurs.

But there is nothing magical about “insurance”—for health care or otherwise. If Congress can regulate Americans as future consumers (and everyone is a future consumer in dozens if not hundreds of markets), then it could equally impose any number of mandates on the citizenry today as a means of regulating the transactions in which they are expected to engage tomorrow, next week, or in 40 years.

Such mandates could require prepayment now for commodities or services to be consumed in the future, thereby benefiting today’s markets and consumers by injecting additional liquidity and perhaps decreasing their costs. Indeed, Congress could impose even more blatant cross-subsidizing mandates, as it did in ObamaCare, where health-insurance premiums paid by young members of the middle class are expected to defray the costs of health care being consumed by the less affluent.

If upheld, such purchase mandates would become a mainstay of federal regulation, offering Congress an easy way to cure the ill effects of constitutionally proper but economically dysfunctional schemes. With ObamaCare, Congress sought to offset ruinously expensive new insurance industry regulations, which barred normal underwriting considerations, such as a customer’s pre-existing conditions, by forcing all Americans to become insurance customers.

An identical approach would permit imposition of a similarly ruinous (but constitutional) “green” car sales requirement on automobile manufacturers, supported by a new (and equally unconstitutional) mandate that all Americans buy a new, “green” car at periodic intervals or pay a penalty. And so it goes.

There is virtually no economically unrealistic regulation—that forces companies to produce goods nobody wants to buy, or sets artificial prices—that could not be salvaged at least in the short run by an offsetting purchase mandate of some kind. Yet in the long run the resort to central planning, effected through such mandates, would fare no better in the U.S. than it did in the Soviet Union.

Although the policy merits of various mandates could be honestly debated, there simply is no neutral, judicially enforceable basis on which courts can determine which prepayment mandates Congress can impose as a means of regulating future transactions and which it cannot. In fact, if the courts were to scrutinize such mandates, as ObamaCare defenders suggest, striking down those they considered to be too onerous or preposterous (such as a “broccoli mandate”) the judges truly would be engaged in illegitimate judicial activism.

As the Supreme Court has consistently ruled in the past, the Constitution gives Congress only limited and enumerated powers. However vexing a particular problem may be, Congress can address it using only those powers. If its preferred solution requires the exercise of a power it was denied, such as a general police power, then Congress must think again. If, as in this case, Congress persists in adopting legislation that goes beyond its constitutional authority, the courts must invalidate it. That is not judicial activism. It is the fulfillment of the judiciary’s constitutional duty.

Messrs. Rivkin and Casey are lawyers who served in the Justice Department during the Reagan and George H.W. Bush administrations. They represented the 26 states in their challenge to ObamaCare before the trial and appellate courts.

A version of this article appeared April 24, 2012, on page A15 in some U.S. editions of The Wall Street Journal, with the headline: Overturning ObamaCare Isn’t ‘Judicial Activism’.


David Rivkin on the SCOTUS review and the last three days of ObamaCare

(Part II of II) David Rivkin goes live on Hour 2 of Bill Bennett’s ‘Morning In America’ and reviews the Supreme Court and their roles during last three days of the ObamaCare hearings and what to expect next.

Post your comments and thoughts on the SCOTUS ObamaCare hearings and what you think is going to happen next.