Tuesday, November 10, 2009
Dean Erwin Chemerinsky (Irvine) and David B. Rivkin (Baker & Hostetler) are debating the constitutionality of an individual health insurance mandate as part of the federal healthcare overhaul in the Federalist Society Online Debate Series. The issue--whether Congress has authority to require individuals to purchase health insurance--has gotten some attention since Rivkin and Lee Casey penned a Washington Post op-ed arguing that Congress lacked authority under the Commerce Clause. (I critiqued their argument here.)
Here's a flavor:
Chemerinsky: There is no constitutional problem with Congress requiring that individuals purchase health care or pay a penalty. . . .
Over many cases, the Supreme Court has held that Congress can regulate economic activities that taken cumulatively across the country have a substantial effect on interstate commerce. Purchasing health insurance is an economic transaction. Taken cumulatively those who do this, or who don't do it, have a substantial effect on interstate commerce.
Rivkin: Wickard v. Filburn and Gonzales v. Raich do not support [Chemerinsky's] position. In both of these cases, Congress sought to regulate individuals engaged in traditional agricultural/economic activities, growing wheat and marijuana. The fact that they did so for personal consumption did not detract from the underlying economic nature of these activities. . . .
Professor Chemerinsky also overlooks the existence of two major cases--United States v. Lopez and United States v. Morrison--in which the Supreme Court, in 5 to 4 decisions, has specifically rejected the notion that Congress can regulate non-commercial behavior merely because, arguably, such behavior can have an impact on Commerce. The Court's overarching reason for doing so was its compellingly articulated belief that the Commerce Clause is a limited grant of power and one that cannot be infinitely capacious. This reasoning is unassailable.
Indeed, the vertical separation of powers, under which the federal government possesses limited and enumerated powers, while the States wield general police powers, is the key part of our constitutional architecture. . . .
Professor Chemerinsky's vision of a Commerce Clause on steroids would fundamentally warp our constitutional architecture. Because every single decision by individual Americans, be it buying health insurance, cars, health club memberships or any other good or service, has some impact on the economy, it could be subject to regulation by Congress.
There's much more; check it out.