Commentary: Taking shots at health care law

E. Thomas McClanahan is a columnist for the Kansas City Star.
E. Thomas McClanahan is a columnist for the Kansas City Star. MCT

In a landslide last week, Missouri voters approved a state law barring the federal government from penalizing residents who don't buy health insurance.

Supporters of Obamacare dismissed the vote as irrelevant: It occurred in a low-turnout primary, state law can't trump federal law and the health insurance mandate will be sorted out by the courts.

True enough, but this defensive spin missed the point. Seventy-one percent of those voting approved the measure — a proportion large enough to send an unmistakable message.

"I didn't expect the number to be this high," said Cary Hall, president of Benefits by Design, Inc., an Overland Park health insurance broker. "I expected 55 to 60 percent, but not 70. … It was a clear repudiation of Obamacare."

The Missouri vote was the first of four such referendums expected at the state level. But the real first shot in the legal battle against Obamacare came the day before the Missouri vote, in a court ruling on a case brought by Virginia. That state has an anti-mandate law similar to Missouri's.

U.S. District Judge Henry Hudson ruled that Virginia's lawsuit raised constitutional objections to Obamacare serious enough to merit a trial. As resounding as the Missouri vote was, the Virginia case is far more significant.

It was a preliminary real test of the constitutional arguments that will be used for and against Obamacare's mandatory insurance provision.

Virginia's main argument was that the commerce clause — the constitutional provision giving Congress the authority to regulate interstate commerce — could not be used to justify the personal insurance mandate. A person who refuses to buy something is not engaging in commerce.

Administration lawyers disagreed, arguing that a decision not to purchase insurance amounts to "economic activity" because interstate commerce is affected by the sum of such personal decisions.

They cited two Supreme Court cases illustrating the commerce clause's improbable flexibility, including one that allowed officials to restrict the amount of wheat someone could grow for private use, and a second case allowing federal regulation of marijuana grown for medicinal purposes.

Virginia countered that those cases involved voluntary acts, while refusing to buy insurance was a decision not to act. The state cited another Supreme Court case, United States vs. Morrison, in which the court ruled that while its interpretation of the commerce clause had changed over the years, even this power is subject to limits.

The administration buttressed its argument by citing the Constitution's necessary-and-proper clause, which gives Congress authority to enact laws needed to carry out its enumerated powers. But Virginia pointed out that the necessary-and-proper clause can't be used to justify a law if that law is unconstitutional.

The administration further contended that the fine authorized for refusal to buy insurance is actually a tax, and pointed out that Congress' power to tax is even broader — and less subject to challenge — than its power to regulate commerce.

Virginia replied that language in the health care law doesn’t meet the historical criteria of a tax. For one thing, it's called a "penalty" in the legislation, not a tax. For another, its purpose is to regulate conduct rather than raise money, and if everyone complied with the mandate and bought insurance, the penalty would raise no revenue at all.

Many supporters of Obamacare appear to take it as self-evident that Congress can require everyone to buy health insurance. Nancy Pelosi, asked by a reporter whether she thought such a law would pass constitutional muster, replied, "Are you serious?"

But the Virginia case shows that the issues are indeed serious. As Judge Hudson wrote, "Never before has the Commerce Clause and Necessary and Proper Clause been extended this far." He refused the government request to dismiss Virginia's case and scheduled a trial for October.

If the personal mandate stands, it will represent an enormous increase in federal power. Critics are right to worry about where this might lead.

Forcing citizens to engage in private transactions of the government's choosing crosses a bright line. If the feds can do that, they aren't likely to stop with health insurance.