CQ TODAY ONLINE NEWS
June 27, 2012 – 11:09 p.m.
Congress’ Power Also at Stake in Health Decision
By John Gramlich, CQ Staff
The Supreme Court’s decision on the constitutionality of the 2010 health care overhaul has the potential to redefine the limits of congressional power in areas that go well beyond health care, lawmakers and legal experts contend.
The much-anticipated ruling, slated to be issued Thursday sometime after 10 a.m., is expected to be the high court’s first major opinion in at least a half-century on the reach of the Constitution’s Commerce Clause.
The court has given Congress broad latitude to regulate interstate commerce but the central question now facing the justices is whether the clause also permits Congress to require Americans to buy health insurance — essentially creating commerce in order to regulate it, as critics portray it, instead of regulating economic activity already under way.
Lawmakers on opposite sides of the health care law agree that the court’s position on the validity of the requirement that most Americans buy health insurance, something known as the individual mandate, as well as other legal questions, could govern what Congress can do in many policy areas.
“A case like this one is bound to have a ripple effect on other cases for years and maybe decades to come,” said Sen.
Blumenthal, a supporter of President Obama’s signature legislative achievement, said the court’s interpretation of the Commerce Clause as it relates to the health care law probably will affect cases that are “seemingly unrelated” to that challenge, because the clause “is so much at the core of the Constitution” and affects a wide range of congressional interests.
Activity vs. Inactivity
Utah Republican Sen.
“If this law is upheld as constitutional by the Supreme Court, then there’s virtually nothing that’s beyond Congress’ reach, and I think that would be a horrible, horrible precedent for the country,” said Lee, a former law clerk to Justice
Conservatives have argued that a ruling in favor of the mandate would suggest that Congress could force people to buy American-made cars, for instance.
A decision striking down the insurance mandate could prompt legal challenges to federal statutes that have nothing to do with health care, since lawyers might seize on the rationale articulated by the justices, particularly one preventing Congress from regulating instances of “inactivity.”
Gerard N. Magliocca, a professor at Indiana University’s Robert H. McKinney School of Law, said if the court finds that Congress cannot regulate inactivity, theoretically the decision could invite challenges to criminal laws that result in prosecutions for the possession but not the sale of illicit drugs.
Magliocca conceded that parallels between criminal statutes and the health care law (PL 111-148, PL 111-152) are probably a stretch, but he added, “If you’re convicted of one of those crimes, why not try?”
Congress’ Power Also at Stake in Health Decision
Lawyers are more likely to use a decision invalidating the insurance requirement to test the constitutionality of federal laws that require child support payments from those who move from state to state. If Congress cannot require Americans to buy health insurance, it might also lack authority under the Commerce Clause to require child support payments, Magliocca said.
The precise wording of the decision will determine its reach. A ruling declaring the law unprecedented and especially egregious, for example, could place the law into its own category and make it difficult for lawyers to use it to challenge other laws. But a decision less precisely worded could put other statutes at risk.
Potential Medicaid Precedent
The court’s decision on the individual mandate is not the only aspect of the case that could set an important precedent on the breadth of congressional power. The case, for instance, also tests the constitutionality of the law’s expansion of Medicaid.
How the court rules on the law’s requirement that states either go along with the expansion of the health insurance program for the poor and disabled or risk losing their federal share of Medicaid funding could prompt challenges to other congressional spending programs that require states to take actions in order to benefit from a larger program.
Daniel O. Conkle, a law professor at Indiana University, said the question for the justices is whether the law’s Medicaid expansion is overly “coercive” on the states and, if it is, how to define exactly when congressional spending programs become too onerous.
He pointed to a 1987 case in which the Supreme Court upheld a congressional spending law that withheld 5 percent of highway funds from states that allowed those younger than 21 to purchase and consume alcohol. Losing 5 percent of highway funds, Conkle noted, is far less of a fiscal burden than the loss of all federal funding for Medicaid, a federal and state-funded health insurance program that enrolls nearly 60 million people and represents the largest share of many states’ budgets.
A ruling upholding the Medicaid expansion could empower Congress and give legal weight to so-called “unfunded mandates.” A court ruling against the Medicaid expansion, on the other hand, would give states a potential avenue to challenge other federal spending laws that they view as imposing unfair burdens, Conkle said.
“Even if the court thinks it’s just opening the door a crack to challenges to spending programs,” he said, “you’ve got the potential for new litigation, with challengers trying to push the door open a little further.”