Not Your Average Product

I go back and forth about this issue: is the health care law currently in the Supreme Court constitutional or not?

The answer, as I see it, boils down to an argument not being made to the justices. If access to health care is an inalienable human right, like that of free speech or property, then the law is within Congress's authority to pass. Otherwise, it's difficult to say if it's within legality, but I'm leaning towards not.

First let me be clear that I do believe health care is a human right and therefore national health care is a good idea. However, I also believe in the final say of the United States Constitution, so I'm at odds with myself.

Second, I strongly feel the court should not be even hearing this case. This is the only aspect of the proceedings I am sure about. A grievance cannot be taken to court without something to grieve, specially so far tax laws. The legislative mandate on trial would force a tax penalty on anyone who does not purchase or have health insurance. Until someone is hit with that tax there is nothing to petition against, and therefore the court should not hear the case until 2014 when the tax penalty first goes into effect. The justices claim this tax penalty is not a tax law and therefore gives them jurisdiction over it now, and I don't understand the argument.

However, that point is almost irrelevant since the law's constitutionality won't change between now and when the first tax penalty is levied. So the real question is, where does Congress get the right to force people to buy health insurance? The tax penalty is easy: Congress has the right to "lay and collect taxes, duties, imposts, and excises, to pay for the debts and provide for the common defense and general welfare of the United States" (Article 1, Section 8, Clause 1). However, since this tax's purpose is to penalize those without health insurance, the right to tax is not on trial here. Congress is using its taxation power to regulate health care. Is that within its rights?

Health regulation is not explicitly mentioned in article 1 of the Constitution, so Congress invoked the vague "commerce clause" (Article 1, Section 8, Clause 3) which allows it to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes." Originally seeming to refer to money exchanges, very quickly commerce received a wide interpretation from early courts, starting with Gibbons v. Ogden where Chief Justice Marshall argued that commerce is not just trade and traffic but "intercourse" between two states. The only aspect of commerce that is untouchable, then, is something that goes on solely within the borders of one state without affecting the others in any way. This clause with Chief Justice Marshall's influential decision allowed Congress much regulatory power, including that over highways, the Internet, and even the air - the Clean Air Act was argued to be interstate commerce because car pollution travels from state to state, therefore making it a federal issue.

Health care is certainly something that takes place in more than one state, and, as the law's defenders argue, if everyone in the United States uses it, then they would have the power to regulate it under the commerce clause. However, does Congress have the right to force a person to buy it? Is this kind of regulation within its power? As Scalia wryly said on the second day of oral arguments, could Congress then force people to eat broccoli, since food is also an essential item everyone uses in every state?

(Before I go on, I would like to point out on a brief aside that taxpayers essentially are forced to buy specific food thanks to sweeping subsidies for corn, and because of these subsidies nearly everyone is force to eat corn because corn products have worked their way into almost everything we eat - although it is indeed possible, while difficult thanks to these subsidies, to live a corn-free existence. However, besides this being an imperfect analogy, I don't like comparing law making I dislike - corn subsidies - to legislation I do like - health reform. Just because something is legally possible doesn't make it desirable. The opposite is true, too.)

So it all boils down to this: is health care a product or not? If health care is a product then a mandate to purchase it would be like forcing someone to buy a brand name for the sake of public good, whatever the excuse for that might be - broccoli because it "promotes general welfare" by forcing people to eat healthier, I suppose.

But if we can acknowledge that health care is more than a product then the law may just be constitutional. I've argued before that essential services such as health care, education, food, and basic services (such as sewage) do not and should not function in the free market the same way as other products and when they are treated like products people suffer. I won't get into this research now - that's a whole other discussion.

Perhaps we can think of health care as belonging to the rights of "life" part of "life, liberty, and property" that are guaranteed in the 5th and 14th amendments. If so, then the individual mandate to purchase it can be construed to be in violation of the "liberty" and "property" parts by threatening financial penalties.

In conclusion, this law's constitutionality is a tough call. There are a lot of legal issues at play here having to do with a lot of case law history I can't wait to read more of. For now, all I can hope for is what's best for both people's health and for the balance of power as outlined in the Constitution.