Andrew Koppelman on the “Origins of a healthcare lie.”

May 31st, 2012

Looks like I’m not the only person writing a book about the Affordable Care Act.

Andrew Koppelman is publishing a book from Oxford University Press (Spring 2013) about “the constitutional objections to the Affordable Care Act.” And here’s what he found:

The Constitutional limits that the bill supposedly disregarded could not have been anticipated. They did not exist while the bill was being written. They were invented only in the fall of 2009, quite late in the legislative process.

The first exploration of Congress’s authority to enact a mandate was a paper by Mark Hall, which he posted on SSRN in February, 2009. (I have not been able to find even a hint of the constitutional objection before Obama’s election, even though mandates have been proposed, mainly by Republicans, since the early 1990s.) He concluded that the mandate easily followed from existing commerce clause jurisprudence. His piece is extensively footnoted, but it cites no authority to the contrary. Republicans had no constitutional objections. Senator Charles Grassley said in June 2009, “I believe that there is a bipartisan consensus to have individual mandates.”  (He later changed his mind.)

The first published claim of unconstitutionality that I have been able to find is a July 10, 2009 Federalist Society paper by Peter Urbanowicz and Dennis G. Smith. They created the now notorious action/inaction distinction, declaring that “Congress would have to explain how not doing something – not buying insurance and not seeking health care services – implicated interstate commerce.” But they made only a modest effort to rebut the obvious response based on text and precedent, and their bottom line was that a mandate “might be susceptible to an ‘as applied’ challenge from individuals who (1) never access the health care system or (2) are able to pay for their health care without using insurance.” Not only does this not suggest a facial challenge of the kind that the Court is now considering — even they weren’t that bold — but the hypothetical individuals are fanciful.  No one who is not a multimillionaire can know for certain that they will be able to pay for all their future health needs out of pocket.

On July 14, the House committees generated a unified healthcare bill, and the next day, the bill passed the Senate Health Committee. On July 24, a Congressional Research Service memo, determinedly evenhanded, declared that the power of Congress to require the purchase of a good or service was “a novel issue.”  It, too, developed no substantive argument for unconstitutionality.

An August 17 blog post by Rob Natelson offered a litany of briefly stated constitutional objections, most of which were never heard from again. It was quoted sympathetically, but without elaboration, on the Volokh Conspiracy blog, by David Kopel – the first post on that blog to suggest that there could be a constitutional issue. (The importance of the Volokh blog to the health care issue has already been noted,here.) On August 22, David Rivkin and Lee Casey wrote a Washington Post op-ed declaring that “[t]he federal government does not have the power to regulate Americans simply because they are there.” There were some follow-up posts on Volokh Conspiracy byJonathan Adler and Ilya Somin, both of whom reluctantly concluded that the bill was clearly authorized by current law. (Both later changed their minds and will now tell you that the mandate is obviously unconstitutional!)

On Sept. 18, Randy Barnett entered the fray for the first time, with apost on Politico and a follow-up on Volokh. Suddenly the meme went viral. On Sept. 21, CBS News reported that “In the last few days, a new argument has emerged in the debate over Democratic healthcare proposals.” CBS observed that The O’Reilly Factor and Fox News had picked up on the story.  Suddenly there was an outpouring of pieces, on Volokh and elsewhere, developing the constitutional objection. But even at this point, it was a soundbite, not a legal argument.

The bill passed the Senate Finance Committee on October 13, and the full House of Representatives on November 7.

The first sustained legal argument was published by Barnett and two coauthors in a Heritage Foundation paper on Dec. 9, 2009. This was no casual blog post. It carefully engaged the cases and the literature, and closely tracked the argument that eventually was brought before the Court. Barnett deserves the credit he has gotten: like so much of his work, the argument was witty, sophisticated, creative and clever. There had been nothing like it before. But it had little basis in existing law, and its flaws came to light almost immediately. Rivkin and Casey made a similar argument (which didn’t add much, on the crucial commerce power issue, to their earlier op-ed) in a piece (undated) on the Pennsylvania Law Review’s web edition. Jack Balkin wrote a devastating reply, to which Barnett posted a link and response on Dec. 11.

Ilya Somin takes exception with some of these arguments.

Unfortunately for Koppelman, I have never said that “the mandate is obviously unconstitutional.” Rather, I have repeatedly written that the issue is a close case on which both sides have some good arguments, although I think the anti-mandate argument is ultimately superior and should prevail. I even wrote a post entitled “The Individual Mandate Case is not Easy,” which explains my view on this in some detail: . . .

Jonathan Adler has also never said that the issue is an obvious one. It is, rather, some of our opponents who have weakened their position by implausibly asserting that the case in favor of the mandate is obviously correct.

Jon Blanks points to a January 2008 Cato piece by Mike Tanner, calling the Massachusetts individual mandate “unprecedented”:

Technically the last day to sign up for insurance in compliance with that mandate was November 15, though as a practical measure Massachusetts residents actually had until January 1, 2008. Those without insurance as of that date will lose their personal exemption for the state income tax when they file this spring. In 2009, the penalty will increase to 50 percent of the cost of a standard insurance policy.

Such a mandate was, of course, a significant infringement on individual choice and liberty. As the Congressional Budget Office noted, the mandate was “unprecedented,” and represented the first time that a state has required that an individual, simply because they live in a state and for no other reason, must purchase a specific government- designated product.

It was also a failure.

Update: Brian Leiter comments:

Andy Koppelman (Northwestern) has an interesting overview.  The objections were latecomers, and they went viral not because of their merits (they’re awful arguments, that you couldn’t get away with in class) but because of an energetic political movement in the United States devoted to thwarting human progress and well-being–which is basically what Jack Balkin (Yale) says, though more politely!

Update: David Bernstein weighs in:

As noted previously on this blog, Democrats in Congress essentially ignored plausible constitutional objections to the ACA’s individual mandate, and therefore have only themselves to blame if the law is declared unconstitutional.

A counter-meme has spread on the liberal/left that constitutional objections to the ACA’s individual mandate were somehow invented circa late 2009, whereas previously all mainstream constitutional commentators, including conservatives, would have conceded that such mandates were constitutional . . . Of course, there was little reason for anyone to have written about a mandate before such a mandate was being actively considered by Congress, given that President Obama had promised NOT to enact a mandate in his 2008 campaign. . . .

The Clinton Administration was sufficiently concerned about constitutional objections to its health care proposals that according to the November 15, 1993, Washington Times, the administration asked that Congress:

Require lawyers to file within one year after the massive plan becomes law any challenges to its basic constitutionality; Give exclusive jurisdiction to an unusual panel of three judges from the U.S. District Court for D.C.;
Forbid those federal judges from issuing temporary restraining orders or injunctions to stop the plan while the case is being litigated; Send appeals only directly to the Supreme Court; and consolidate separate cases.

The constitutional hubbub over Hilarycare was especially remarkable given that this was pre-Lopez andMorrison, that is before the only two modern cases to declare that there are limits to federal authority under the Commerce Clause. The objections weren’t developed further at the time because Hilarycare never came close to enactment.

In short, the meme that conservatives expressed no constitutional objections to federal health care mandates until they became associated with Barack Obama is, in a word, false.