Health Mandate Fight Hinges On Commerce Clause

On Monday, Virginia became the first state to declare a portion of the health care overhaul unconstitutional. Judge Henry Hudson ruled that the portion of the law that mandates that U.S. citizens be insured violates the commerce clause. For more on the commerce clause, NPR's Melissa Block speaks with Brannon Denning, who teaches law at Samford University's Cumberland School of Law in Alabama.

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MELISSA BLOCK, host:

Can the federal government require Americans to buy health insurance? Well, yesterday, a federal judge in Virginia said no, that that part of the health care overhaul law is unconstitutional. The legal argument hinges on the powers given to Congress under the Commerce Clause of the Constitution. The clause is a short one. It says that Congress has the power to regulate commerce with foreign nations and among the several states and with the Indian tribes.

To find out how that connects with health care, I'm joined by Professor Brannon Denning. He's written frequently on the Commerce Clause, and he teaches at Samford University's Cumberland School of Law in Birmingham, Alabama.

Welcome to the program.

Professor BRANNON DENNING (Cumberland School of Law, Samford University): Thank you, Melissa. Thank you for having me.

BLOCK: How would you describe the original intent or application of the Commerce Clause in the Constitution?

Prof. DENNING: Well, it's interesting because the Commerce Clause was originally intended to solve a quite different problem, that of states engaging in what amounted to commercial warfare with one another during the period right before the drafting of the U.S. Constitution.

So for the first several decades, the arguments before the courts was how far did that go to limit states' ability to regulate commerce that moved out of their state or into their state.

BLOCK: In what kinds of ways?

Prof. DENNING: Well, for example, if you were Virginia, let's say, and you wanted to promote your own tobacco, you could forbid the importation of other states' tobacco into your state, or you could tax that tobacco that came in from other states at a higher rate than you taxed your own tobacco.

Now, this was good for states, right? They needed money. Times were tough in the mid-1780s. But it wasn't a situation that tended to produce a lot of amicable feelings among these states that were supposed to be newly united in this one sovereign entity called the United States of America.

BLOCK: Well, let's jump ahead and look at the ruling from Judge Henry Hudson in Virginia yesterday. He found that the Commerce Clause does not apply here. What was his reasoning?

Prof. DENNING: Well, Judge Hudson says that this is particularly unprecedented because what Congress is attempting to do is to force individuals to purchase a product. So in other words, merely by doing nothing, you can't avoid regulation the way you could if, say, it were some kind of prohibition.

And Judge Hudson was persuaded by the arguments of many of my colleagues who are opposed to the health care mandate, who said: Look, this is not only unprecedented, it's simply outside the scope of government power. Government can't force you to participate in a particular economic activity. If they can for health care, where does it stop? You know, do we all have to buy some other kind of product that the government thinks would be useful or helpful?

BLOCK: I think his phrasing was that extending the logic of the Commerce Clause lacks logical limitation. He raised the example of would we be forced to eat asparagus in a hearing on this case.

Prof. DENNING: Right, right, or to use a former president's example, broccoli, you know.

(Soundbite of laughter)

BLOCK: Broccoli.

Prof. DENNING: Judge Hudson seemed to adopt this view that any interpretation of the Constitution that has no stopping point is inconsistent with this idea of limited, enumerated governmental powers that was considered a real bulwark against governmental abuse by the framers.

BLOCK: Now, the Obama administration's argument was that the refusal to buy health insurance could be an economic activity in its own right, and therefore the Commerce Clause would apply.

Prof. DENNING: Precisely. They made a series of arguments that built a chain of causation saying: Look, everybody needs health care at some point in their lives. And they're saying that by not requiring people to purchase insurance, this scheme to require insurance companies to cover everyone and not to turn away people because of pre-existing conditions simply wouldn't work because people would wait to buy insurance until they were sick and needed it and that all this in the aggregate, the administration says, substantially affects interstate commerce. And therefore in order to keep the whole scheme from collapsing, we have to be able to require people to purchase insurance.

BLOCK: Okay, Professor Denning, thanks so much.

Prof. DENNING: Thank you, Melissa. I appreciate it.

BLOCK: That's Professor Brannon Denning. He teaches law at Samford University's Cumberland School of Law in Birmingham, Alabama.

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