After a federal court in Virginia ruled Monday an aspect of Obama’s healthcare reform law unconstitutional, we repost this transcription of the March 26, 2010, episode of The Breakdown, in which Christopher Hayes asks Columbia law professor Gillian Metzger whether states’ challenges to the healthcare overhaul as unconstitutional will hold up in court. Go here to listen to the full audio of this episode of The Breakdown.
Christopher Hayes: Hello and welcome back to The Breakdown, week 12 episode 12 in a collector’s series. Ok, let’s get to this week’s question which comes via Paul Smith from Baltimore, Maryland via Twitter. He says, “How exposed to a serious constitutional challenge is the individual mandate in healthcare reform?” Of course, as I am speaking to you, the listeners, the President is scheduled to sign into law the Healthcare Reform Bill which passed the House late Sunday night. Today is Tuesday and by the time you listen to this, it will be the law of the land.
And to answer the question about how exposed to a constitutional challenge the individual mandate is, I have with me on the line Professor Gillian Metzger, who is a professor of constitutional and administrative law at Columbia. Gillian, thanks for joining us.
Gillian Metzger: My pleasure.
CH: Alright, let’s start with: if you were hired to bring a constitutional challenge against the individual mandate, what avenue would you pursue and who would be the person to bring it?
GM: Well, that’s an interesting question. I honestly think there is no really good avenue to challenge it, so that’s a tough one. I mean, most of the things that I’ve heard of are being brought by attorney generals of states, and I’ve sort of heard of two different kinds of challenges. The main ones have been that it’s sort of outside of Congress’s regulatory authority under the Commerce Clause. And then I’ve also heard of some that challenge particular special deals. States are obviously in the best position to bring those latter challenges to the extent that they’re basically a state equality claim.
The challenges to this being outside the commerce power have really focused on the individual, what’s called the individual mandate, and the idea that the bill unconstitutionally is requiring individuals to purchase insurance. That’s not actually what the bill is doing, but that claim that the action is outside of Congress’s commerce power, I would think that that would be an action probably in many ways best brought by someone who had not purchased it and was subject to the tax that would result. That’s down the line though, and the kind of anticipatory challenges brought now are really more being thought of in terms of states, and I’m not quite sure how they come in on the individual mandate challenge.
CH: Right, so let’s distinguish. There are states that have already passed laws exempting them, and those are most likely political theater. It’s either constitutional or it’s not, and if it’s not constitutional, then those laws don’t really matter either way. Now, so there’s a timeline issue, right? Which is that if it’s not the state, if it’s the individual, a person says, “My injury—in order for me to have standing in the court of law—is that I didn’t purchase insurance, and the mandate is forcing me to pay that tax," which is actually how it is structured. There’s a rightness issue with that because that doesn’t kick in until 2014.
GM: Right. So they are actually forced to pay the tax. The real problem with that argument, though, is that the taxing power is extraordinarily broad. I mean, if you look at the text of the constitution, it’s phrased extremely broadly. And if you look at the precedent, the court has continuously held that Congress has very broad power to tax activities—even activities that it doesn’t have power to regulate, even when one of its reasons in taxing is actually to try and hinder or suppress the activities at issue—and that line of precedent goes back very far in time, even to the license cases going back to 1866, I believe.