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The Inevitable Conservative Argument that Health Care Reform is Unconstitutional

By Jack M. Balkin

It was only a matter of time. After Michelle Bachmann and Virgina Foxx, now come David Rivkin and Lee Casey to tell us that if health care reform passes, it will be unconstitutional. And they even drag out a case from the Lochner Era, Bailey v. Drexel Furniture, to make their case.

You see, Rivkin and Casey think that a federal requirement that uninsured individuals must purchase health insurance can't be within Congress's commerce power because when ordinary individuals don't purchase health insurance, their mere failure to do so has no effects (economic or otherwise) on interstate commerce.

The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the "production, distribution or consumption of commodities," but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there.

Got it? When people don't buy things, by definition it doesn't affect commerce! (For example, during recessions people stop buying things and everyone knows that has no economic effects.) On the other hand, Rivkin and Lee begin their op-ed by arguing that "[w]ithout the young to subsidize the old, a comprehensive national health system will not work." This sounds to me like a claim that the number of people who buy health insurance affects the ability of private insurance companies to sell health insurance at a profit. So again, why is it that failure to purchase health insurance does not affect interstate commerce?

Hey, David, Lee, let's debate this one. In public. It would be fun. Really, it would. I'd love to defend the proposition that the New Deal is constitutional with you.

I haven't had this much fun since Con Law I.

Full post as published by Balkinization on August 22, 2009 (boomark / email).