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.
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.
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 . . . .