A Minute With...

Kurt T. Lash, expert on constitutional law

3/22/2012  8:00 am

Kurt T. Lash, the Alumni Distinguished Professor of Law at Illinois, is one of the nation’s leading scholars on constitutional law. He spoke with News Bureau business and law editor Phil Ciciora about the upcoming health care law clash in the U.S. Supreme Court.

In your opinion, is the health care mandate unconstitutional?

image of professor kurt lashI think a reasonable justice could decide either way. The opponents of the law are correct in claiming that Congress has never exercised this kind of power before under the Commerce Clause, which means that this case is not directly controlled by any prior judicial precedent.

On the other hand, the health care industry is a clear example of commerce that, since the time of the New Deal, the court has generally left to the control of the government.

What makes this case difficult is the means Congress has chosen to advance its overhaul of the health care industry – a requirement that most people purchase health insurance.

When Congress passed the Affordable Care Act, it required insurance companies to insure individuals regardless of pre-existing condition. Unless the young and healthy purchase insurance to help subsidize the entire pool, the requirement essentially bankrupts the insurance industry. That’s why Congress added the health care mandate.

Proponents of the law argue that this is why the insurance mandate is necessary and proper for regulating commerce (the insurance industry). Opponents claim this is bootstrapping: Congress cannot create power to force people into commercial activity by passing a law that only works if people are forced into economic activity. In their view, even if such a law might be “necessary,” it is not “proper.” It would allow Congress to pass laws so burdensome to the auto industry, for example, that the only way the industry could stay afloat would be if people bought more cars, whether they needed them at the moment or not.

At the very least, though, such a possibility is likely to give some of the justices pause as they consider the implications of their decision.

If the individual mandate were to be ruled unconstitutional, does the rest of the health care law fall apart?

I think so. There is no severability clause and the main provisions of the law simply will not work without the mandate – at least not unless you are willing to bankrupt the insurance industry.

How prominent a role will the Wickard v. Filburn precedent play?

Wickard v. Filburn is an important New Deal-era case in which the Supreme Court upheld the power of the federal government to regulate – or basically, ban – the consumption of home grown wheat as part of a broad price-stabilization effort to control the supply and demand of wheat.

In the decades prior to Wickard, the Supreme Court had placed agriculture beyond the constitutional reach of the federal government since it did not involve “interstate commerce.” In Wickard, however, the court ruled that controlling the activity of wheat growing by farms otherwise engaged in the commercial wheat business was a “necessary and proper” means of controlling the interstate market for wheat.

This opinion became the basis for the Supreme Court’s recent decision in Gonzales v. Raich, in which the Supreme Court struck down a state law authorizing noncommercial medicinal use of marijuana.

Wickard may also play an important role in the Affordable Care Act litigation since Congress is once again trying to regulate a noncommercial activity – the refusal to engage in the commercial activity of purchasing insurance – in order to support a broad commercial regulatory program.

If the court strikes down the mandate, it will likely distinguish the prior cases of  Wickard and Raich on the grounds that both cases involved congressional regulation of an activity. This case, on the other hand, involves congressional regulation of nonactivity – the refusal to purchase a product. Those justices who vote to uphold the mandate will most likely have read Wickard and Raich as not only extending congressional power beyond the regulation of commercial activity, but also as justifying congressional regulation of inactivity that undermines a broader federal commercial regulatory program.

There are many different possible outcomes to this case. What do you foresee happening?

The possible outcomes are so varied that the court has scheduled three days of oral argument just to try and cover most of the alternatives.

As do most commentators, I predict the court will uphold the law in its entirety. There appear to be four clear votes to uphold the law, which means that proponents need to pick up only one additional vote to win their case. They won’t get it from Associate Justice (Clarence) Thomas, who has traditionally objected to the Supreme Court’s expansion of federal power at the time of the New Deal, but they might get it from Associate Justice (Antonin) Scalia, since he joined the majority in Raich. They also might get a fifth vote from Chief Justice (John) Roberts who, in cases like United States v. Comstock, joined an opinion with a fairly broad articulation of congressional power under the Necessary and Proper Clause.

The justice to watch, however, is Associate Justice Anthony Kennedy. Commonly known as the “swing justice” because of his tendency to swing from liberal to conservative positions, Kennedy may decide that the insurance mandate not only violates principles of constitutional federalism (which would allow Massachusetts to enact such a program, but not the national government), but also abridges individual liberty by conscripting individuals into the service of a federal program.

It’s one thing to draft individuals into an army in time of national emergency; it’s another to draft individuals and their money into the service of the insurance industry.

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