Judge Andrew Napolitano blasted a constitutional expose across the op-ed pages of the Wall Street Journal this morning, citing Supreme Court precedent which he believes has the effect of rendering unconstitutional any Congressional effort to legislate health care reform. Ultimately, the Judge failed to shed much of any light on how the Supreme Court might approach such an issue.
Napolitano takes the Commerce Clause route, which is to say that he questions the relationship between health insurance regulation and interstate commerce. On one hand, the Judge makes sense; all 50 states have established some sort of Insurance Commission and tasked it with the regulation of that State's particular insurance industry. Furthermore, the nature of competition within the health insurance industry is that it's fought on a state-by-state basis. The Judge's argument is flawed, I believe, in the assumption that "health insurance", as a commodity, does not already trade across state lines. For instance, the entire theory behind Medicaid is that the Government has an interest in providing health insurance to those who lack the means of affording it in the private marketplace. If private health insurance were priced around $20/month for a family of four, it would eliminate the need for government based systems.
Aside from my basic theoretical objections to the Judge's argument, I was a little disappointed with the sole Supreme Court precedent he used to justify his position. United States v. Lopez - the Judge's only supporting citation - dealt with the furthest outer-limits of the commerce clause. Basically, Lopez told Congress that it couldn't pass "no guns in school zones" Acts because they had nothing to do with the sale of goods and services across state lines. This was the first instance in several decades that the Supreme Court had reigned in Congress' broad interpretation of interstate commerce; however the facts of that case in no way resemble the facts in a hypothetical Constitutional challenge to a federal health insurance regulation.
In fact, I Shephardized the Lopez case just to see whether it was even still valid case law; in doing so, I came across Gonzales v Raich, a case that upheld the Government's right to enforce the Controlled Substances Act in the face of a Commerce Clause challenge. I found the following Supreme Court language particularly relevant to the question of health care regulation:
"The Supreme Court has never required Congress to legislate with scientific exactitude. When Congress decides that the total incidence of a practice poses a threat to a national market, it may regulate the entire class. In this vein, the Supreme Court has reiterated that when a general regulatory statute bears a substantial relation to Commerce, the de minimis character of individual instances arising under that statute is of no consequence"
With the absence of any Supreme Court precedent bearing similar facts, the outcome of a Constitutional showdown over health care reform remains debatable. The facts however, would seem to indicate that health insurance regulation would likely withstand a Commerce Clause challenge.
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