Greenhouse, Lithwick Make The Case For HCR Mandate’s Constitutionality

In separate articles that have garnered lots of attention recently, Supreme Court watchers Linda Greenhouse and Dahlia Lithwick make the case that the health care reform law’s requirement that Americans purchase insurance easily passes constitutional muster.

In the New York Times, Greenhouse writes that the mandate comfortably falls within Congress’s authority to regulate interstate commerce:

So I want to unpack the challengers’ Commerce Clause argument for what it is: just words.

Basically just one word, in fact: “unprecedented.” …

The government argues that, to the contrary, the “uncompensated consumption of health care” by those who are willfully or helplessly uninsured is itself an enormous economic activity. The uninsured don’t exist apart from commerce. To the contrary, their medical care results in some $43 billion of uncovered health care costs annually and, through cost-shifting, adds $1,000 a year to the average cost of a family insurance policy. People who don’t want to buy broccoli or a new car can eat brussels sprouts or take the bus, but those without health insurance are in commerce whether they like it or not.

At Slate, Lithwick opines that the case is not even a close call on the merits:

So let’s start by setting forth two uncontroversial propositions.  The first proposition is that the health care law is constitutional. The second is that the court could strike it down anyway. …

The law is a completely valid exercise of Congress’ Commerce Clause power, and all the conservative longing for the good old days of the pre-New Deal courts won’t put us back in those days as if by magic. Nor does it amount to much of an argument. …

What matters is whether the five conservative justices are so intent in striking down Obama’s healthcare law that they would risk a chilly and divisive 5-4 dip back into the waters of Bush v. Gore and Citizens United.

Lithwick makes this prediction:

[The justices] will hear six hours of argument next week. They will pretend it is a fair fight with equally compelling arguments on each side. They will even reach out and debate the merits of the Medicaid expansion, although not a single court saw fit to question it. And then the justices will vote 6-3 or 7-2 to uphold the mandate, with the chief justice joining the majority so he can write a careful opinion that cabins the authority of the Congress to do anything more than regulate the health-insurance market. No mandatory gym memberships or forced broccoli consumption.

 

ABOUT THE AUTHOR

Sahil Kapur is TPM's senior congressional reporter and Supreme Court correspondent. His articles have been published in the Huffington Post, The Guardian and The New Republic. Email him at sahil@talkingpointsmemo.com and follow him on Twitter at @sahilkapur.
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