Being Right: Constitutional Contradiction



I couldn’t have picked a better time to take a class on constitutional law. Just over a week ago, Judge Roger Vinson struck down the Patient Protection and Affordable Care Act, known colloqui­ally as “the healthcare law” or “Obamacare.” Better yet, he cited the commerce clause as his reason for its unconstitutionality, at the exact same time we were studying the commerce clause, the very week I was assigned to write a column on the repeal of the healthcare law. Hello, serendipity.

So having read the entirety of “State of Florida, et al vs. United States Department of Health and Human Services, et al” for class, I can tell you this: Republicans are shooting themselves in the feet by trying to be bipartisan and “fix” the law, rather than repeal it. Senators Lindsey Graham and John Barasso have expressed their willingness to redraw the healthcare legislation, this time including an “opt-out” provision for states as regards the individual mandate.

Sounds nice, doesn’t it? States in which citizens vehemently oppose the government or­dering them to purchase federally approved health insurance can pass on that provision, ef­fectively voiding the legislation within their state. States in which the citizens are cool with being told what to do with their money can keep the individual mandate, and purportedly their citizens will all have stellar healthcare and go for acupuncture every week. Or something like that. But it’s great! Everyone’s happy. Except this opt-out clause is the kiss of death for individual rights and freedoms.

Hey, I heard that, and I am not a melodramatic conservative psycho. I sim­ply understand the implications of the recent ruling down in Florida, and its relation to the opt-out clause.

Of note, Judge Vinson is a man with a soft spot for health care reform. He digs the concept of “positive improvements that will reduce costs, improve the qual­ity of care, and expand availability in a way the nation can afford.” So to all you liberals reading this, don’t go telling me this judge is a right-leaning Tea Party “terrorist plant” or other such nonsense. He gave his opinion on the law based on its constitutionality, and not personal distaste for healthcare legislation.

The defendants – HHS et al – tried to claim that the individual man­date is constitutional under the right Congress possesses to “Regulate com­merce … among the several states” (Article I, Section 8).

Congress has passed a number of leg­islative measures using this power, and subsequent testing in the courts has resulted in a gener­al understanding of what that power allows Congress to do. Judge Vinson noted that the com­merce clause allows Congress to regulate activity pertaining to trade – not simply “economic activity,” a very loose term that would encompass all purchases a person could consider. Not purchasing something, as he said, is inactivity. The commerce clause only applies to activity. Thus, peace out individual mandate.

The next step in determining the law’s fate rested on the concept of severability, which asks: Can the law still function as Congress intended it to function without the unconstitutional bit? Judicial precedent tends to allow the rest of the statute in question to stand, and often laws will include a severability clause that allows for a law’s other provisions to remain, even if one element is unconstitutional. Interestingly, the healthcare law had no such clause. Gosh, it’s like they were expecting this or something!

Indeed, the absence of a severability clause indicates that Congress knew that without the individual mandate, the law wouldn’t do what they wanted it to do – namely, make health insurance more affordable. In fact, in its motion to dismiss the case, the government referred to the individual mandate as “essential” to the law no less than 14 times. By the defendants’ own admission, the individual mandate is what made the entire law effective. Therefore Judge Vinson concluded that the Patient Protection and Affordable Health Care Act was en­tirely unconstitutional, because the rest of the law’s provisions were inextricable from the unconstitutional part.

And now we find ourselves staring at the problem Republicans create for themselves if they agree to the opt-out clause.

By “fixing” healthcare instead of repealing it, the GOP concedes the individual mandate, concedes reforming healthcare on terms more palatable to conservatives, and, most of all, concedes freedom.

Granting states the ability to opt out ties the hands of the folks in places where the mandate is accepted. They can no longer contest the constitutionality of the government forcing them to purchase health insurance. Hey, if they don’t like it, they can move somewhere else.

But that’s not how we work in the United States. All the good intentions in the universe don’t grant the government the right to force citizens to make a purchase, and Republicans would do well to remember what it once took to reclaim lost freedom.