Legal Commentary

Deference and the Constitutionality of Health Care Reform

By David Bernstein

As constitutional challenges to the new health care law work their way up the courts, proponents of the the law?s constitutionality will inevitably argue that the Supreme Court should defer to Congress?s understanding of its own constitutional powers, especially when it comes to such significant legislation. As early as 1922, the Supreme Court wrote, ?Whatever amounts to more or less constant practice, and threatens to obstruct or unduly to burden the freedom of interstate commerce is within the regulatory power of Congress under the commerce clause and it is primarily for Congress to consider and decide the fact of the danger and meet it.? This message was reiterated with greater force in the late 1930s, when the Supreme Court gradually abandoned policing the limits of the Commerce Power.

As a matter of constitutional construction, I think there is a lot to be said for the courts adopting a general posture of deference to the elected branches on constitutional matters, but only if a reasonable observer would be satisfied that Congress and the Executive took their duty to ensure the constitutionality of the legislation they passed seriously. An example of where the Court could have exhibited more deference than it did was United States v. Morrison, where Congress collected substantial (though not incontrovertible) evidence that the Violence Against Women Act was a proper exercise of Congress?s Section 5 power under the 14th Amendment to guarantee equal protection of the laws.

From what I can tell, though, Congress and the Obama Administration treated the idea that the health care law needed to be within Congress?s enumerated powers with thinly-veiled contempt. Most famously, when Speaker Pelosi was asked last Fall where the Constitution gives Congress the power to enact an ?individual mandate,? she replied with a mocking ?are you serious? Are you serious??

I didn?t follow the health care debate extremely closely, but I seem to remember reading that other Congressmen, and some Administration officials, also acted befuddled, bewildered, or with contempt when constituents or journalists asked them about the constitutionality of the health care legislation. Not to mention the refrain that no one will know what?s in the bill until it?s final passage, which hardly inspires confidence that its constitutionality was properly considered, and the shifting rationales that have been used to justify the individual mandate?s constitutionality.

I thought it would be fun, and potentially useful to litigants, if VC readers would provide us in the comments below with as many examples as possible, with citations, of members of the executive and legislative branches disclaiming, mocking, etc., their duty to determine the constitutionality of the legislation they were enacting.

Full post as published by The Volokh Conspiracy on August 22, 2010 (boomark / email).