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Is the Individual Mandate 'Severable' from the Rest of ObamaCare?

The act commonly known as ObamaCare and the portions of a subsequent act known as the Reconciliation Act are lengthy and extensive. A number of constitutional issues are lurking regarding the two acts. It isn’t possible to deal with all of them here, but I would like to discuss those issues I think have the greatest chance of judicial success. (For discussion sake, hereafter I am dealing with both acts in the singular — “ObamaCare.”)

Having said that, I’d like to note that I had hoped the Congress would have considered these matters seriously before voting. The repeal of the legislation would obviate the need for yet another bitter court fight which places the U.S. Supreme Court in the position of having to resolve something a more responsible legislature with greater respect for — and knowledge of — the Constitution would have resolved itself. (But see Congressman Phil Hare for an example of how little regard he has for his duty to uphold the Constitution.)

While there is substantial reason to believe that by running on a platform of repeal the Republicans may retake the majority in the House of Representatives, it is unlikely that they will regain the majority of the Senate in 2010. That means that any effort to repeal all or portions of  ObamaCare will be scotched in the Senate. Even if more Republicans should win in the Senate and are joined by enough Democratic senators to pass a Republican House effort, it is hard to see how an Obama veto could be overridden until after the 2012 elections (when we hope a new president will be elected).

Given these political realities, we must simultaneously consider the possibilities of a judicial challenge. There are already 13 state attorneys general filing a singular petition and one separate filing by the attorney general for the state of Virginia. The Thomas Moore Law Center (TMLC) has also filed suit on behalf of individuals who refuse to purchase health insurance. In the linked posting, Ilya Somin of the Volokh Conspiracy said:

The little-known TMLC case could turn out to be important if the states’ challenges to the individual mandate are dismissed for lack of standing or on other procedural grounds that may not apply to individual citizens who (unlike the states) are directly subject to the mandate.

The Tenth Amendment to the Constitution, part of the Bill of Rights, reads very simply:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

To be sure, as many commenters correctly observe, the separation of powers between the states and the federal government is vanishing as the federal government dictates many things to the states through a variety of means. Through an expansive reading of the Commerce Clause, which gives the federal government power over the states to regulate matters in interstate commerce, Congress and the courts have justified most of this overreach.

But as Professor Jonathan Turley observes, there nevertheless remain some limits imposed on the federal government by the federal structure of our Constitution. ObamaCare  seems surely to have exceeded those limits in its demand that each person purchase health insurance — the “individual mandate” provision:

Yet, recognizing federal jurisdiction over health care does not mean that Congress is free to use any and all means to achieve its goals. Congress would need to show that the failure of an individual to get medical insurance constitutes an interstate commerce matter. [Snip]. With the newly minted health care law, Congress is effectively ordering a citizen to buy a product and treating the uninsured citizen himself as an interstate problem in the same way Congress regulates endangered species.

In 1995, for the first time since the Depression, the Supreme Court ruled that an act of Congress — the Gun Free School Zones Act — violated the constitutional enumeration of powers because the conduct regulated did not affect interstate commerce (United States v. Lopez), with Justice Rehnquist writing the opinion. The Supreme Court applied the reasoning of that case to another congressional act in 2000 in United States v. Morrison. Here, the Court ruled the federal government’s conduct was not warranted by reference to the interstate commerce clause and invalidated as unconstitutional provisions of the Violence Against Women Act.

Turley argues that while the question of state rights versus federal rights has been largely a partisan one where views on what is prohibited by the Tenth Amendment have been hypocritically based on the proponents’ take on the subject matter of the legislation, ObamaCare, if not checked by the courts, would be a death knell to the entire concept of federalism and an invitation to unlimited federal intrusion in our daily lives. Discussing a theoretical 18-year-old uninsured man, Turley observes:

Congress is declaring the failure to insure oneself to be an interstate matter. There is no question that being uninsured contributes to the national crisis in health care. If that 18-year-old has a car accident, it is the public that is likely to bear the costs of his care. However, if the failure to get insurance makes one the object of federal jurisdiction, it is hard to see the why other acts of omission will not be tied to national deficiencies in public health or education or family welfare.

Professor David Kopel at the Volokh Conspiracy notes that while some singular provisions of ObamaCare may pass constitutional muster — that is, come within the scope of federal reach, where existing precedents of the Court have held that scope to be constitutional — the requirement that each person obtain health insurance does not:

In contrast, the individual mandate to purchase health insurance is not. It “is unprecedented in our jurisprudence.” Romer v. Evans (1996). It is possible to make arguments for extensions of cases such as Wickard, Raich, and Sonzinsky in support of the mandate. However, such arguments are a plea for extending those cases, not for merely applying them. For example, an application of Wickard/Raich might be a law against a person manufacturing her own medicine at home, rather than purchasing the medicine through the federally controlled market.

No prior case stands for the proposition that Congress may use the interstate commerce power to order persons to buy a particular product, or may use the tax power to punish people for choosing not to purchase a particular product. I can imagine a judicial opinion that builds on the foundation of Wickard, Raich, and Sonzinsky, and extends those cases much further, in order to uphold the mandate. The Court might do so, but the Court would be doing much more than merely applying precedent.

The Wall Street Journal also argues the unconstitutionality of the individual mandate  and notes that the mandate is distinguishable from Massachusetts’ health care law and may violate a specific privacy provision of Florida law:

All human activity arguably has some economic footprint. So if Congress can force Americans to buy a product, the question is what remains of the government of limited and enumerated powers, as provided in Article I. The only remaining restraint on federal power would be the Bill of Rights, though the Founders considered those 10 amendments to be an affirmation of the rights inherent in the rest of the Constitution, not the only restraint on government. If the insurance mandate stands, then why can’t Congress insist that Americans buy GM cars, or that obese Americans eat their vegetables or pay a fat tax penalty?

The mandate did not pose the same constitutional problems when Mitt Romney succeeded in passing one in Massachusetts, because state governments have police powers and often wider plenary authority under their constitutions than does the federal government. Florida’s constitution also has a privacy clause that underscores the strong state interest in opposing Congress’s health-care intrusion.

That the individual mandate is unconstitutional, of course, would not completely resolve the issue because legislation of such length and complexity often contains a “severability clause” —  a provision that if any portion of an act is found unconstitutional, the remainder will still stand. But ObamaCare apparently contains no such provision.

Moreover, as Processor Kopel argues, the individual mandate is at the very heart of the legislation. It all must be struck if the individual mandate is. To paraphrase his argument, ObamaCare would turn our private insurance companies into ultra-regulated public utilities (and probably bankrupt ones at that). But the scheme is utterly senseless in the absence of the individual mandate, and that mandate is not severable from the rest of the act.

If the government’s interest in your health care is so substantial a federal interest as to warrant compelling you to buy health insurance, one might see the necessity of such an extensive federal role in health insurance and the provision of health care, including the calorie counting mandate on restaurant menus. But if it is not, it is hard to see how the rest of the act can be constitutionally justified. (One wonders how the left would react if the federal government, having won the argument that this was all within its powers, began denying care to the obese, alcohol or drug users, the sexually promiscuous, or homosexuals on the ground that their behavior increased health costs to the government.)

Will the Obama administration stall in order for popular anger against the bill to cool down? Professor Ilya Somin of the Volohk Conspiracy argues that using the legal doctrines of standing and ripeness, the administration may stall court consideration until public rage has subsided, making repeal or revision by Congress more difficult:

I think eventually a case will arise that meets even the most rigid standing and ripeness standards. At the very least, it should be possible to bring such a suit once the individual mandate takes effect in 2014. By that time, however, public anger against the health care bill might have diminished, at least some parts of the bill will have been implemented, and it will be much harder to uproot. Thus, it is in the Obama administration’s interest to persuade the courts to postpone consideration of these issues for as long as it can.

Somin thinks the state cases might be hurt by the doctrine of standing, as the individual mandate is the strongest argument and doesn’t apply to the states. And he thinks the TMLC cases brought on behalf of individuals may be delayed on the ground of ripeness, as the mandate isn’t effective until 2014.

I think Professor Somin is wrong and too pessimistic about the state cases. ObamaCare interferes with billions of dollars of state programs and would require the states to spend a fortune to comply with new Medicaid eligibility rules. I think, in sum, the standing of the states is a less significant hurdle to justiciability than he does.

In any event, Somin thinks delay will work to the advantage of the defenders of the act:

[C]ourts are unlikely to strike down a major federal statute with strong political support. They might be more willing to act against one that is highly unpopular, as the health care bill is today. By 2014, public anger at the bill might diminish and a reelected President Obama might be much more popular than he is now, perhaps buoyed by a recovering economy. Of course it’s also possible that Obama will be defeated in 2012 and that his health care bill will be less popular in four years than it is now. On balance, however, I think that the defense is more likely to benefit from delay caused by procedural factors than to be harmed by it.

Professor Somin doesn’t say so explicitly, but these cases are particularly vulnerable to the subjective assessments of the various members of the Supreme Court, and with a likely vacancy during the course of Obama’s term, the situation becomes even more problematic.

In sum, I think that Professors Turley and Kopel are correct that the most constitutionally vulnerable portion of ObamaCare is the individual mandate and that it cannot be severed from the rest of the act. And I think Professor Somin is right that there is every reason to believe that the administration will utilize everything at its disposal to prevent or delay the resolution of the pending cases in the hope that public opinion will shift and that this will affect the final resolution in its favor. Although I suspect that the administration now “owns” health care in the public mind and rage at the act will only grow with each cut-off in benefits, increase in taxes, and difficulty in getting care.

As I said at the beginning, I prefer political resolution of this in any event. Register and vote out of office everyone who voted for this monstrosity, and support everyone who will work to gut or repeal it. A win at the ballot box is a better resolution than a hope and a prayer that the Supreme Court will do what it ought to and declare the act unconstitutional in sufficient time to prevent the destruction of our health care system and economy.