In a fundraising e-mail to her supporters on Tuesday, Representative Michele Bachmann (R-MN) made a startling claim. Making an obvious job at Mitt Romney for signing statewide healthcare reform in Massachusetts, she wrote, “Government health mandates of any kind at the state or federal level are unconstitutional.”
Many conservatives believe that a federal individual mandate to buy health insurance is unconstitutional, despite the fact that the Heritage Foundation invented the individual mandate and many Republicans endorsed it in the past. The argument is essentially that the federal government’s power to regulate interstate commerce does not extend that far.
It’s an argument that is wildly at odds with the last seven decades of constitutional jurisprudence. The Supreme Court has held that growing crops—from wheat to marijuana—purely for personal consumption is subject to federal regulation because whatever you grow you don’t buy. It would blatantly contradict those precedents for the Supreme Court to over-rule the individual mandate in the Affordable Care Act.
But Bachmann’s position goes a good deal further. If states cannot mandate that you buy health insurance, will she also argue that they cannot require drivers to buy auto insurance? It’s absurd to argue that driving is an activity and buying health insurance isn’t. No one who gets sick chooses to die instead of going to the hospital because they didn’t buy insurance and must accept the consequences, Ron Paul’s hopes to the contrary notwithstanding. When they go to the emergency room they are treated and the costs are passed on to the rest of us. So not buying health insurance is clearly an active decision as much as buying it is.
Bachmann’s campaign did not respond to a request for clarification. But Simon Lazarus, public policy counsel to the National Senior Citizens Law Center, helped me understand Bachmann’s constitutional philosophy.
“The Massachusetts mandate, or a state mandate, would not be unconstitutional under the theories that the people challenging the law are claiming to rely on,” says Lazarus. “In fact they are strenuously insisting that the states would be free to do what they want.
“But the logic is that the mandate interferes with individual liberty to such a drastic extent. If it’s unconstitutional because it interferes with liberty, it violates the Fifth and Fourteenth Amendments. That’s the reasoning the Court used in the Lochner era, the first third of the twentieth century: that laws interfering with child labor, for example, interfered with substantive due process rights.”
The “Lochner era” refers to the period when the Supreme Court followed the precedent of the infamous 1905 case Lochner v. New York, in which the Court held that a state law limiting the number of hours a baker may work to sixty per week violated the right of contract implicit in the Fourteenth Amendment. Under that precedent, much of the New Deal was unconstitutional. “That kind of reasoning was repudiated in 1937 and has been on the shelf ever since then,” says Lazarus.
Bachmann wants to revive the long-discredited school of legal thought known as Lochnerism. “If that were to happen, not only would that mean the mandate at the state level is unconstitutional; it could mean that Medicare taxes are unconstitutional,” warns Lazarus. Of course, Bachmann’s rival for the right-wing vote, Rick Perry, thinks Social Security is unconstitutional, so she has to come up with kooky constitutional theories of her own to compete.