Affordable Care Act

The Commerce Clause and American Progress

In the Tea Party, it’s all the rage these days to declare everything unconstitutional – Social Security, Medicare, unemployment insurance, disaster relief, federal civil rights laws, health care reform, basically any law that enables the federal government to take on national-scale problems.

One of the main strategies that the Tea Party has been using to push this extreme and regressive view of the Constitution is pushing aside the Commerce Clause, the clause in the Constitution that gives Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”

The Commerce Clause, long recognized by courts as the rationale for important progressive economic programs, has come under fire from opponents of health care reform, who are arguing in the courts – with mixed success -- that the clause does not allow the Affordable Care Act’s individual health insurance mandate.

In a new report, People For the American Way Foundation Senior Fellow Jamie Raskin argues that “a powerful case can be made “that the Commerce Clause is “the most important constitutional instrument for social progress in our history.”

Without it, Congress could not have passed the National Labor Relations Act, the Fair Labor Standards Act, the Clayton and Sherman Anti-Trust Acts, the Civil Rights Act of 1964’s prohibition of race discrimination in hotels, restaurants and other places of public accommodation, the Occupational Safety and Health Act, the Equal Pay Act, the Clean Air Act, the Clean Water Act and dozens of other federal statutes protecting the environment and establishing the rights of citizens in the workplace and the marketplace.


Why, then, does the Commerce Clause seem pale and dull next to the Free Speech and Equal Protection Clauses?
Perhaps it is because these provisions clearly declare radiant principles of liberty and equality that translate into easily understood and intuitively attractive protections against arbitrary government power.

Because the Commerce Clause has been a powerful instrument of social reform over the last century, its meaning has periodically provoked deep jurisprudential controversy. This is ironic since the Court routinely and unanimously upheld congressional assertion of a comprehensive federal commerce power before broad democratic purposes entered the picture. The commerce power became the target of virulent attack by corporate conservatives when progressives and labor gained political influence and used this power as the constitutional basis upon which to regulate and improve the character, terms and conditions of the American workplace and marketplace in favor of large numbers of the American people.


Raskin follows the Commerce Clause from its origins at the Constitutional Convention, through the Lochner era, when an activist court “put the Commerce Clause in a straightjacket” to strike down federal worker protection laws and other attempts to regulate interstate commerce, to the late 1930s, when the court returned to a more expansive view of the clause, allowing progressive economic programs and civil rights reforms to flourish, to the Rehnquist Court, which again began to narrow down the scope of Congress’s constitutional regulatory power, to challenges to the Affordable Care Act, which threaten to take us back to the Lochner era.
 

You can read the full report here.

PFAW

Wisconsin News Round-Up, 07/01


Today's news from Wisconsin:

 

PFAW

6th Circuit Court Rules Healthcare Reform Constitutional

In a win for the millions of Americans who are set to receive health insurance through last year's healthcare reform law, the 6th Circuit Court of Appeals has ruled the Patient Protection and Affordable Care Act constitutional. The full ruling can be read here.

The ruling comes in one of several challenges to the healthcare reform law being floated by Tea Party-affiliated groups and Republican attorneys general. (This particular challenge comes from the right-wing Thomas More Law Center.) The groups all challenge the law’s individual mandate, an idea first proposed by conservative groups as an acceptable method of ensuring universal healthcare. The appeals court found that the individual mandate is well within the reach of the Constitution’s Commerce Clause, which allows Congress to regulate commerce between the states.

The 6th Circuit is the first federal appellate court to rule on the healthcare reform law, and it has been called one of the more conservative benches. Judge Jeffery Sutton, a George W. Bush nominee and former Scalia clerk, wrote a concurring opinion upholding the constitutionality of the Affordable Care Act. His concurrence offers a detailed and extremely respectful analysis – and rejection – of the claims that the law violates the Constitution because it compels people to purchase a product. He has been called “one of the nation’s leading advocates for conservative states-rights positions” yet, in addition to rejecting the Commerce Clause argument, he also gave short shrift to More’s Tenth Amendment argument.

From the court’s decision:

By regulating the practice of self-insuring for the cost of health care delivery, the minimum coverage provision is facially constitutional under the Commerce Clause for two independent reasons. First, the provision regulates economic activity that Congress had a rational basis to believe has substantial effects on interstate commerce. In addition, Congress had a rational basis to believe that the provision was essential to its larger economic scheme reforming the interstate markets in health care and health insurance

The ACA is clearly constitutional, but the fight is far from over. Despite the fact that this case has one of the nations’ leading conservatives ruling for the constitutionality of the ACA, there are more constitutional challenges still making their way through the courts.

 

PFAW

Judges Regard Arguments Against Healthcare's Constitutionality With Healthy Skepticism

The constitutionality of the Affordable Care Act is once again in the news, as a three-judge panel of the Fourth Circuit Court of Appeals heard arguments yesterday on the constitutionality of the healthcare reform law. As reported by the Los Angeles Times:

Lawyers for Virginia struggled to explain how the state had the legal standing to challenge the healthcare mandate on behalf of its citizens. The judges said precedent did not permit states to sue on behalf of their citizens to contest federal laws.

But standing was not a problem in a second case, where lawyers for Liberty University sued on behalf of several individuals. Both lawsuits said a requirement in the new law that everyone purchase healthcare was a violation of the Constitution. ...

By their comments, members of the panel of the 4th Circuit Court of Appeals sounded as though they would reverse that decision and say Virginia Atty. Gen. Ken Cuccinelli had no standing to challenge the law.

Liberty University lost its lawsuit in federal District Court and appealed to the 4th Circuit. Mathew Staver, their lawyer, said Congress could regulate commerce but not "idleness." In this instance, he referred to the refusal of his clients to purchase health insurance.

But the judges didn't sound persuaded. They noted the Supreme Court had said Congress had broad power to regulate a national market, and the mandate was an attempt to regulate insurance. It is a "practical power," Judge Davis said, to regulate effectively.

Perhaps the judges did not sound persuaded because the far right's legal argument is so weak. It cannot be repeated too often that many of those caterwauling most loudly that the healthcare law is unconstitutional were expressing the exact opposite opinion before the corporate-funded Tea Party arose. In fact, the individual mandate was a Republican idea and originally championed by many of those who now claim that it is an unconstitutional usurpation of power by the federal government. Senators Orrin Hatch and Charles Grassley – who co-sponsored legislation during the Clinton Administration that featured an individual mandate – are among the many who have shamelessly flip-flopped on the issue.

Adding to the shamelessness, Mat Staver was one of the attorneys arguing before the court today that the law is unconstitutional. His extremism has long been reported in Right Wing Watch.

PFAW

The Corporate Discount: Who the Republican Spending Cuts Really Benefit

In the Huffington Post today, People For the American Way's President Michael Keegan connects the extreme pro-corporate policies being pushed by federal and state GOP officials with the new liberty that corporations have to buy influence in elections:

One year after Citizens United v. FEC, when the Supreme Court opened American elections to a corporate spending free-for-all, elected officials in Washington and in statehouses around the country are pushing a stunning set of financial policies that, if passed, will provide a windfall for giant corporations at the expense of already-hurting individual taxpayers. Largely proposed under the guise of financial responsibility, these proposals threaten job creation and essential government services while ensuring the coffers of corporations remain untouched.

American taxpayers are beginning to fight back against some of the most egregious proposals, such as Wisconsin Gov. Scott Walker's attempt to bust public employee unions and the House GOP's slashing of funding for women's health care. But as long as corporations can buy unlimited political influence, these battles will only escalate and they will continue to be just as lopsided.

In the coming weeks, we will see the interests of corporate funders and the interests of individual taxpayers go head-to-head as Congress and the president attempt to hammer out a continuing spending resolution that will keep the government running for the rest of the year. The Republican House wants to block funds to reproductive health services, gut the Affordable Care Act, and even prevent the Environmental Protection Bureau from regulating pollution -- all while costing an estimated 700,000 American jobs. The winners in the House's proposal? Large corporations and the wealthy, who under the proposal astoundingly would not even be asked to give up a single tax loophole.

Read the whole thing here.

PFAW

The House GOP's Aboogaboogaboogabooga Constitution

For the past few decades, Republicans have aggressively and notoriously acted as if only they love the flag, only they appreciate families, only they are religious, and only they care about national defense. In the past couple of years, inspired by the Tea Party, they've added a new object to which they falsely lay sole claim: the United States Constitution.

Of course, for many of them, it's little more than a fetish. After all, the Republican Party's Constitution has long denied the right to abortion (and, in many cases, the right to privacy altogether), denied church-state separation, denied the right to vote, and denied equality under the law for LGBT people. The Tea Party's version of the Constitution is even more removed from the real thing, as analyzed in a recent PFAW report, Corporate Infusion: What the Tea Party's Really Serving America.

So it's no surprise that House Republicans' latest effort to lay claim to the Constitution – requiring bill sponsors to submit statements specifying the constitutional authority for their legislation – has turned out to be meaningless. As reported by Congressional Quarterly (subscription required):

During a Feb. 11 subcommittee markup on a bill (HR 358) offered by Joe Pitts, R-Pa., to prohibit federal funds from being used to pay for health insurance that covers abortion, New York Democrat Anthony Weiner offered a point of order against the legislation on grounds that its "statement of constitutional authority" does not point to any specific authority for Congress to take such action.

The bill's statement says: "The Protect Life Act would overturn an unconstitutional mandate regarding abortion in the Patient Protection and Affordable Care Act," last year's health care overhaul.

The markup soon became chaotic as lawmakers clashed for nearly an hour over whether the statement passed muster, and whether the Republicans were flouting their own rule. "The rules are the rules, and the Constitution is the Constitution," Weiner exclaimed.

Eventually, Energy and Commerce Chairman Fred Upton, R-Mich., consulted the Rules Committee, which in January issued a handy guide to complying with the new rule. The Rules Committee provided guidance on how statements of constitutional authority might be phrased, but said the only requirement is that a statement be submitted.

"The question of whether the statement is sufficient is a matter for debate and a factor that a member may consider when deciding whether to support the measure," Upton said.

The committee's top Democrat, Henry A. Waxman of California, called that “a mockery” of the rules. "The ruling is that it doesn't make any difference what you say,” he said. “You could say, 'Aboogaboogaboogabooga!' and that's enough to justify the constitutionality of the proposal."

The Constitution that established a careful separation of powers, an independent court system, freedom of speech, freedom of religion, the eradication of slavery, and equality for all is far too precious a document to become just a symbol in meaningless political posturing. Shame on the House Republicans.

PFAW

Judge Said to Have Made "Obvious and Significant Error" In Health Care Ruling

Once people had time to look past the headlines and actually read this week's opinion striking down a key component of the Affordable Care Act, a number of them are pointing out what they consider a serious flaw in Judge Hudson's reasoning. The key error, they claim, is when the judge wrote:

If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.

Calling the opinion "Amateur Hour," Talking Points Memo writes:

Legal experts are attacking Judge Henry Hudson's decision on the merits, citing an elementary logical flaw at the heart of his opinion. And that has conservative scholars -- even ones sympathetic to the idea that the mandate is unconstitutional -- prepared to see Hudson's decision thrown out.

"I've had a chance to read Judge Hudson's opinion, and it seems to me it has a fairly obvious and quite significant error," writes Orin Kerr, a professor of law at George Washington University, on the generally conservative law blog The Volokh Conspiracy.

Kerr and others note that Hudson's argument against Congress' power to require people to purchase health insurance rests on a tautology. ...

The Necessary and Proper Clause allows Congress to take steps beyond those listed in the Constitution to achieve its Constitutional ends, including the regulation of interstate commerce. Hudson's argument wipes a key part of the Constitution out of existence. Kerr says Hudson "rendered [it] a nullity."

Kerr's co-blogger, Case Western Reserve University Law Professor Jonathan Adler agreed, though he cautioned that Hudson's error doesn't necessarily imply that the mandate is constitutional.

In an interview with TPM this morning, Timothy Jost of Washington and Lee University, a supporter of the mandate, called the logic on this point "completely redundant."

Ouch.

Steve Benen in the Washington Monthly wrote:

That's a rather bizarre legal analysis.

"Bizarre" is one way to describe it. Perhaps another way would be "outcome-based judicial activism."

PFAW