The Colorado Attorney General is Right to Defend Colorado in Fighting the Health Care Legislation

Attorney General John Suthers joined 13 other state Attorneys General against the federal government, challenging the massive new health care legislation (captioned the “Patient Protection and Affordable Care Act”).  The centerpiece of the legislation, and of the lawsuit, is the so-called “individual mandate,” under which all Americans will either have to obtain health insurance or be subjected to a federal tax that by 2016 will equal $750 a year or 2% of your income, whichever is higher.

General Suthers and the other AGs make two claims in their complaint.  First, they assert that Congress does not have the power to tax Americans for not buying a product – in this case health insurance.  They assert that while Congress has broad power under the Commerce Clause to regulate “activities” that affect interstate commerce, it can’t regulate persons whose only activity is not purchasing health insurance.  They also challenge the method by which Congress is enforcing the “individual mandate.”  They argue that the manner in which Congress imposes the tax penalty violates Article I of the Constitution which enumerates the type of taxes that Congress can impose, and which does not describe the tax used by Congress here.

The media (and certain elected officials – predominantly Democrats) are attacking the Attorneys General suit, claiming that it is frivolous and politically motivated.  They argue that there is no legitimate basis for any lawsuit, and that Congress “clearly” has the power to do what it did.  I respectfully submit that such accusations are wrong, and that General Suthers and the other Attorneys General can and should press this case all the way to the Supreme Court for a decision on whether the most expansive exercise of congressional power ever attempted is consistent with our constitutional form of government.

Let’s start with one fact the critics conveniently ignore.  In 1994, when there were early discussions about national health care, the Congressional Budget Office made the following observation:

A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action.  The government has never required people to buy any good or service as a condition of lawful residence in the United States.  An individual mandate would have two features that, in combination, would make it unique.  First, it would impose a duty on individuals as members of society.  Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.  (Emphasis added.)

To assert today that questioning the “individual mandate” is “frivolous” rings hollow given that early on Congress was aware that this approach to health care regulation was “unprecedented.”

Next, let’s address the Commerce Clause challenge.  Legal scholars supporting the health care legislation assert that the Supreme Court has already held that the insurance industry generally can be regulated by Congress (even the intrastate portions), and that the Supreme Court has broadly interpreted the Commerce Clause to encompass a wide range of activities that substantially affect interstate commerce.  They point specifically to Wickard v. Filburn (holding that Congress could regulate a private farmer growing wheat for his own consumption on the theory that this wheat – and similarly private grown wheat by others – would displace the supply of wheat grown nationally in interstate commerce) and Gonzales v. Raich (upholding the federal Controlled Substances Act as applied to privately grown medical marijuana) which both held that the Commerce Clause gave Congress the power to regulate, despite the small-scale, intrastate nature of the conduct being regulated.  Many specifically point to Justice Scalia’s concurrence in Raich that opined that the Commerce Clause’s reach is broad indeed.

A review of these cases, and others, recognizes that while Congress clearly has broad power to regulate an array of “activities” that directly or indirectly affect interstate commerce (including activities that are solely intrastate in character), there is no precedent (as recognized by the Congressional Budge Office) for regulating inactivity. 

The Senate’s findings to support the legislation equate such inactivity (i.e., not purchasing health insurance) to the “activity” of “deciding” not to purchase health insurance.  Given the importance of the “individual mandate” to the overall health care legislation scheme, the congressional majority and legislation proponents assert that “decisions” about the purchase of health care (even when such “decisions” lead to no action whatsoever) are regulatable under the Commerce Clause.  I respectfully submit that it is as much if not more of a stretch to characterize doing nothing with the “activity” of “deciding” as it is to argue that the Attorneys General are bringing “frivolous” claims in challenging such logic in the federal courts.

Justice Scalia’s concurrence in Raich (it is remarkable how many legal scholars on the left are now quoting him) does make a strong case for an expansive reading of the Commerce Clause, including interpreting it in conjunction with Article I’s Necessary and Proper Clause.  But even in his most expansive exposition, he quotes from another case a phrase that suggests certain limits that are implicated here.  Justice Scalia notes that Commerce Clause regulation is valid so long as it represents “an appropriate means to a legitimate end.”  However, I respectfully submit that it is not a “legitimate end” for Congress to regulate inactivity.  A State may be able to accomplish this through exercise of its much broader police powers, but Congress, I submit, cannot – at least not now without a constitutional amendment.

I also respectfully submit that the taxes used here are not “appropriate means.”  A constitutional amendment was required before Congress could levy an income tax.  Prior to the Sixteenth Amendment (ratified in 1913) Congress could not levy an income tax (see Pollock v. Farmers’ Loan and Trust Co. (1895)) because it was not a tax that was apportioned among the states or based on Census results as required by Sections 2 and 9 of Article I of the United States Constitution.  Neither Section 2 nor 9, nor the Sixteenth Amendment (allowing taxes on “incomes” that are “derived”) authorize the tax imposed here.  The Attorneys General assert this claim as well in the Florida case and they are supported by the plain language of the Constitution.  Other than the opinions of law professors, I’ve seen no authority to support such taxation that we’re seeing used here.

The Sixteenth Amendment offers an important lesson.  If Congress wants to directly regulate citizens and force them to purchase health insurance, ask the States for the power to so regulate, just as they obtained the authority to impose an income tax.  The current suits (others are bringing suit as well) have merit, and the Supreme Court will in all likelihood determine the “individual mandate’s” fate, as it should.