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.
So you’ve get extraordinarily broad power to tax. In this case, it’s being set up as a percentage of income. The 16th Amendment authorizes income taxes and pulls those out from any prohibition on direct taxes. And in any event, you’re taxing a non-purchaser of insurance. This isn’t a direct or capitation tax that would be prohibited by the constitution, unless done according to the census. So it’s hard to see why this wouldn’t be a very easy call within the taxing powers. It is genuinely revenue raising, and Congress isn’t actually mandating anyone purchase insurance. All Congress is doing is saying that if you don’t, you’ll be subject to a tax or penalty, just like if you don’t purchase equipment to manage your pollution emissions, you’re going to be subject to a tax or penalty.
CH: That’s a really important analogy, I think. So conceptually an important point to make here is that to view it legally as part of the broad taxing authority granted in the constitution as opposed to—When it’s talked about as a mandate, that language has the most, sort of, forceful element of compulsion to it, right? That the state is going to force you to engage in a behavior, and if you think of it as a tax penalty on a certain behavior, which we have all the time, then that seems to be squarely, conceptually in line with a whole range of activities that government’s already engaged in.
GM: Yes, I think that’s right. I mean, quite honestly the argument that it is outside the commerce power is also pretty specious given the existing precedent.
CH: You know, it’s that time on Tuesday when I want to talk some commerce clause jurisprudence. Can we talk a little bit about the commerce clause? It seems to me that there was a decision fairly recently called Raich, right, which was sort of interesting because it scrambled some traditional liberal and conservative categories because it was a commerce clause case which was: Does the federal government have the power to regulate a certain activity under the commerce clause? Generally conservatives are disposed to say no to that, but in this one Scalia sided with the majority that said, “Yes they do.” Because what was at issue was regulating marijuana, right?
GM: Right. Basically, if you are going to have an effective system of regulation of controlled substances, you can’t pull out from that system sort of locally grown, non-commercially purchased marijuana for personal use without a real risk that it will seep into the broader economic system. And so what Scalia said was, “You can regulate that because what seems to be a local, noncommercial activity is actually part of a larger, economic class of activities, and you have to regulate it to have effective regulations.” And that seems a very easy analogy here.
You’ve got provision of healthcare, provision of health insurance, that’s clearly economic activity. Quite honestly, non-purchase of insurance has a lot of economic impacts as well. If you get sick the impact in terms of emergency care, the impact in terms of lost productivity, in particular, the effect on the risk pools and the cost of insurance elsewhere and the health of people who pull out, these are all economic effects.
And, finally, if you don’t have a requirement that people purchase insurance, I don’t think that the health reform system that was enacted is going to work. If you’re going to prevent discrimination against people on the basis of pre-existing conditions and mandate that they be able to get insurance, then you have to require people to also purchase insurance or pay a fee because otherwise the logical thing to do is to wait until you get sick and then get the insurance, right? So it would be prohibitively expensive.
CH: That’s the adverse selection problem or the "death spiral" in the more dramatic language. So if I’m hearing you correctly, and I think I am, you’re saying that this should be pretty close to a no-brainer that it passes constitutional muster.
GM: I think so. We have passed the time in our nation’s constitutional history at which it was thought that regulating how people use their money in ways that can effect the rest of society is a violation of their individual liberty or their property rights.
CH: Well if the court finds otherwise, we will have you back on to answer the question: Will Obama succeed in his appointing five new Supreme Court justices to expand the size of the court?
Gillian Metzger is a professor at Columbia Law. Gillian, thanks you so much for joining us today.
GM: My pleasure.
Go here  to listen to the full audio of this episode of The Breakdown.