Bachmann — Federal Constitution Prohibits State Insurance Mandates

At today’s Palmetto Freedom Forum debate, sponsored by the good Constitutional Reverend Senator Jim DeMint, Republican Presidential candidate Michele Bachmann ratcheted up the constitutional political rhetoric with a claim that, not only does the federal Constitution preclude Congress from enacting a health insurance mandate, it precludes state governments from mandating health coverage as well:

I believe it is also unconstitutional for states to mandate as a … condition of citizenship, that an individual would have to purchase a product or service even at the state government’s behest.

When pressed about the constitutional authority for her statement, Bachmann said only that she believed it was “inherent in the Constitution.”

As Mitt Romney has discovered, Republican voters aren’t just upset about Obamacare because it was done by the wrong entity — though they employ this argument freely — they hate the idea of a mandate, period.  Yet, up till today, all of the major Republican contenders have been content to fight the state-level battle on old-fashioned policy grounds , without invoking all the constitutional rhetoric.

There are good reasons for this, as the two potential grounds for Bachmann’s position are fraught with some uncomfortable logical and ideological consequences.

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Option 1:  The Dormant Commerce Clause

First, by claiming that a state health insurance mandate was “inherently” prohibited by the federal Constitution, Bachmann could be arguing that state laws mandating health insurance coverage violate the Constitution’s so-called Dormant Commerce Clause.  The Dormant Commerce Clause is a wholly-judicial creation designed to be a mirror image of the affirmative authority granted to Congress over interstate commerce (per Wikipedia):

The Commerce Clause expressly grants Congress the power to regulate commerce “among the several states.” The idea behind the Dormant Commerce Clause is that this grant of power implies a negative converse — a restriction prohibiting a state from passing legislation that improperly burdens or discriminates against interstate commerce. The restriction is self-executing and applies even in the absence of a conflicting federal statute.

For you judicial types out there, the Dormant Commerce Clause is the constitutional equivalent of field preemption.  While states are ordinarily viewed to possess the authority to legislate in the absence of inconsistent federal legislation, the Dormant Commerce Clause prohibits states from legislating in certain ways even when Congress has not passed any inconsistent statutes.  Why?  I suppose it’s because the Supreme Court assumes, at least when it comes to interstate commerce, that the constitutional grant of authority to Congress is conflicting authority that says, in effect, to the states:  ”Not only can Congress legislate to correct interstate commercial messes created by inconsistent state regulations, the states lack the authority to create some of those messes to begin with.”  This is not the case with most other Article 1, Section 8 powers.

So, why haven’t Republicans embraced the Dormant Commerce Clause as a tool in the fight against state-level government-run healthcare?  I can see three good reasons:

1.  I think it’s pretty clear that the doctrine, as formulated by the Supreme Court, wouldn’t prohibit states from enacting health insurance mandates.  It’s just a losing argument.  But that hasn’t always stopped determined advocates — in both parties — from making politically palatable losing arguments part of their stump speech.

2.  The Dormant Commerce Clause is a judicial creation that appears nowhere in the Constitution.  And it’s just really sad for die-hard originalist, anti-Supreme Court types to rely on a judicially-created constitutional doctrine to make their case.  This is post 1787, after all.

3.  Reliance on the Dormant Commerce Clause creates a troubling logical corollary for those convinced of Obamacare’s unconstitutionality.  If the Constitution precludes the states from passing a health insurance mandate on the ground that the authority to do those types of things is reserved to Congress . . . then Obamacare is constitutional.  Game over.  Checkmate.

So, let’s give Bachmann the benefit of the doubt and assume she wasn’t talking about the Dormant Commerce Clause.

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Option 2:  The Due Process Clause

It’s more likely Bachmann’s statement was based a different ground.  The constitutional guarantee of due process of law, applicable to the states through the Fourteenth Amendment, could provide the basis for her contention that states are unable to enact a health insurance mandate.  The Due Process Clauses of the Fifth and Fourteenth Amendments prohibit governments from depriving people of “life, liberty, or property,” without “due process of law.”

Although most straightforwardly applicable to procedural guarantees in courts of law, there is a long tradition, both in this country and England, America’s primary constitutional wellspring, of viewing the constitutional guarantee of due process as more than just an assurance of proper procedural safeguards, but also as a substantive protection of fundamental rights.  The substantive component of the guarantee of due process is called, not surprisingly, substantive due process.  Substantive due process is the basis for United States Supreme Court striking down statutes criminalizing abortion and homosexuality.

The primary benefit of the substantive due process approach to the fight against government healthcare is readily apparent — by putting a health insurance mandate outside of the legislative domain entirely, conservatives avoid the most significant problem associated with the federalism/dormant commerce approaches:  The possibility that all the constitutional battle over Obamacare gets them is 50 separate government-run healthcare schemes, instead of a single one.  But in avoiding this problem, the substantive due process approach creates some other issues.

First, it forces conservatives to make some awkward distinctions.  For example, if state health insurance mandates are prohibited by the Constitution, what about automobile insurance mandates (and please spare me the arguments about how driving a car is “optional”)?  Second, and more importantly, the substantive due process approach would require conservatives to embrace the same judicial doctrine used to justify the current constitutional right to an abortion.  Just as conservatives have argued for years that, “The Constitution says nothing about a right to an abortion,” liberals are sure to respond to Bachmann, “Where is the constitutional right to be free from economic mandates?”

In fact, this is precisely how the Roosevelt Administration responded when conservatives argued, 75 years ago, that individuals and businesses had a constitutional right to be free from troublesome social welfare legislation like maximum hour and child labor laws.  It was conservatives’ insistence in pursuing the constitutional solution to state social welfare legislation that led to the Supreme Court abandoning economic substantive due process in a string of decisions that arguably culminated with that Tea Party favorite:  Wickard v. Filburn.  Sensing a troubling pattern here?  Conservatives should (and most do).  If nothing else, history counsels trying something new this time.

So, which is it, Candidate Bachmann — dormant commerce or substantive due process — that prohibits Romneycare and other state solutions?

I predict the Bachmann team begins an orderly retraction of this statement starting in 3, 2, 1 . . . .

 

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About Curt Bentley

is an attorney practicing commercial litigation, non-profit law, and intellectual property law in Utah at his firm Bentley Briggs & Lynch. In his spare time, he attempts to impersonate a jazz pianist, gardens, and dodges rattlesnakes and stirs up other trouble while running on Utah's amazing trails.

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  • Benjamin

    The interesting question raised about state legislated health insurance mandates is the debate it provokes regarding the nature of a state’s sovereign powers. The whole point of the 14th Amendment is to insulate the individual from oppressive state laws which the original constitution was unable to reach. The founders imagined that state political processes would, by their constituent nature, would squelch laws unloved by the majority. Unfortunately, the counter-majoritarian dynamics of the federal constitution were absent until the 14th Amendment. At that point, the states ceded a portion of their previously unlimited sovereignty over their citizens.
    One legal writer, Professor Kahn from Yale, argues that the point of the constitution was, on some levels, about discovering (and justifying) those few instances when the state could commandeer both the will and the bodies of the individual citizens to engage in purposes that benefitted the state, but did not result from independently ordered choices. The obvious cases included commercial regulation and the conduct of war, largely because these two areas had such massive potential to enrich or impoverish the state and consequently everybody in it. The founders debated these questions vociferously at Philadelphia, but not in the 13 colonies. The questions professor Kahn poses have not really been addressed systemically since the Civil War Amendments or the New Deal revolution.
    The legal challenge to state legislated mandates goes right to that point. The purpose of the individual mandate is to create a system of insurance that efficiently benefits the whole through commandeering the choices of individuals. What makes this question “harder” than auto insurance, is that people have inherent authority to make choices over how their own health care should be directed. It’s much harder to say that people in cars, far more likely to cause accidents and inflict harm on others than an untreated cancer patient, should not have to “pay out” some of the risks they pose to society by driving.
    The other difference is that a health insurance mandate is far more redistributive than auto insurance. Health insurance mandates are really a system for transferring money from health patients to sicker patients. Health insurance, also, is not really “insurance” in the real sense. It is simply health-care finance.
    But really, the question to me is whether the state should be able to construct a system of distributive benefits through the forced participation of everybody through extra-taxation means. It’s a very hard question with states, and their undelegated powers.

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    • http://www.utahpoliticalsummary.com/about/ Curt Bentley

      Ben:

      Good points, especially about individual inherent authority over personal health decisions. In my mind it that point that is the only avenue to meaningfully distinguish the two types of mandates. What’s interesting about that point is it starts to sound very much like the functional equivalent of 9th Amendment liberty, which has got to be uncomfortable for constitutionalist conservatives who’ve spent the last 40 years fighting the battle against Roe v. Wade.

      I guess I’m somewhat philosophically sympathetic to due process arguments — in that I don’t like the idea of mandates — but for conservatives to consciously embrace economic substantive due process again (yes, I classify Bachmann’s statement as a non-conscious type of politically-advantageous qualified embrace — see Dan’s comment below) would require a significant change in approach. It would be interesting for people to kind of shed the “Lochner shame” and really confront the arguments again to see if they could reach a principled and workable solution. Though, as I’m sure you can gather from some of my other posts, I’m skeptical. :)

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      • http://lawafterthebar.wordpress.com Daniel B

        Lochner shame. I like it. Can you do a whole essay on it? And can we assume that about 99% of the internet will have no clue what you are referring to?

        Hmm…that sounds like a good blog name, actually, or a new punk rock band….

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        • Benjamin

          It’s funny the idea of Lochner shame. I once heard Mike Lee describe Lochner as the worst case ever handed down by the court, as an example of “conservative judicial activism.” I don’t read Lochner quite as critically as other commentators do, as liberty of contract is certainly a constitutional ideal worth protecting. It is, after all, set out in the original consitution that the states cannot impair contract obligations. But the idea that Lochner is the “worst case ever,” is somewhat overblown. The bad press Lochner got is that it was the best articulation of the primary intellectual objection to activist government prior to the New Deal. For better or for worse, the New Deal blew everything out of the water. The fact that arch-conservatives like Mike Lee feel compelled to condemn Lochner is a telling indication of just how much the consitutional order changed as a result of the New Deal.

          Ironcially, however, liberty of contract, as interpreted in Lochner, always had a better textual foundation for consitutional protection than many of the Warren-era unenumerated rights found through the 14th Amendment.

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  • http://lawafterthebar.wordpress.com Daniel B

    Let’s be honest: Bachmann’s citation of the constitution has nothing to do with her care for it, but everything to do with what she thinks voters want to hear.

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    • http://www.utahpoliticalsummary.com/about/ Curt Bentley

      Yes, I agree 100%. So maybe she won’t retract anything. But her statement did get me thinking about these issues in a little bit of a different way. And gabe me an excuse to strain a little bit and mention the Dormant Commerce Clause. :)

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      • http://lawafterthebar.wordpress.com Daniel B

        Ah, the Dormant Commerce Clause (or the Door Mat Commerce Clause, if you will)…too much fun to be had with that one.

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