Health care law's enemies have no ally in Constitution

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Health care law's enemies have no ally in Constitution

By Fried May 21, 2010.

A RECENT 7-2 Supreme Court decision affirming the constitutional power of

Congress to allow the indefinite detention of sexually dangerous child

pornographers after the end of their federal sentences has the surprising effect

of showing just how far-fetched are the constitutional objections to the new

health care legislation.

One objection holds that the Constitution's clauses giving Congress the power to

regulate interstate commerce do not give Congress the power to impose a modest

penalty (up to about $700) on people who could — but do not — buy health

insurance.

To see why this is a bad argument, consider the steps by which the Court held

that Congress has the power to keep sexually dangerous child pornographers in

confinement: The Constitution explicitly gives Congress the power to regulate

interstate commerce. And it has long been the law that Congress can forbid

commerce in things that might be harmful. Those who traffic (or possess, in the

case of child pornography) such things can be prosecuted and imprisoned.

The recent Supreme Court ruling, United States v. Comstock, added that the power

to imprison implies an obligation to protect the public from dangerous people

even after they had served their sentences. There can be no doubt that

insurance, and particularly health insurance, is commerce with interstate

effects that Congress may regulate.

For the health regulation to work, though, it is " necessary and proper'' — the

clause explicitly in play in Comstock — to nudge (with the $700 penalty) the

young and healthy to enter the insurance pool, and not to wait until they are

old and infirm. Insurance just won't work if you could wait until your house is

on fire to buy it. But, say the objectors, this is not penalizing someone for

doing something harmful; it's penalizing him for not doing something, and that's

somehow different.

It is not. Congress has the power to enact the regulatory scheme and to design

it in a way that is " necessary and proper'' to its good functioning, and that

means sweeping in the unwilling. But even granting Congress's power under the

commerce and " necessary and proper'' clauses, is it not an offense to

constitutional liberty to impose the $700 penalty? Is the mandate not

independently constitutionally " improper''?

That objection would complain that such a mandate violates some constitutional

liberty even if enacted by a state (as Massachusetts has done). Here again,

Comstock is instructive. The convicted child pornographer claimed that he was

deprived of his constitutional liberty by continued detention after he had

served his sentence, but the Supreme Court had decided many years ago that

Kansas could, with proper procedural safeguards, do just that. And if it

violated no liberty for Kansas to do it, then neither did it violate any liberty

for Congress to do it.

A more telling precedent is the Supreme Court's 1905 decision in son v.

Commonwealth, which rejected a complaint against Massachusetts's compulsory

vaccination law that it said infringed the " inherent right of every freeman to

care for his own body and health in such way as seems to him best.''

Whatever son's right to care for himself, he had none to impose risks on

his fellow citizens. A healthy, young person who persists in staying out of the

insurance pools imposes a burden on his fellow citizens also.

Finally there is the bogus complaint that the federal law unconstitutionally

imposes financial and administrative burdens on unwilling states. The statute

exempts unwilling states from participating, subjecting the citizens of those

states to the federal scheme directly. There are sensible reasons for opposing

the new federal health care system — for instance, it will add to the federal

deficit and fail to control health care costs — but the Constitution is not one

of them.

Fried teaches constitutional law at Harvard Law School.

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