Live-blogging Midday: Is the health care law constitutional?

Driving through Colorado and Nebraska the other day, I had the pleasure of listening to a fascinating debate on whether the new health care law is constitutional. Today, MPR’s Midday is debating the question with South Dakota Attorney General Marty Jackley and former Minnesota AG Mike Hatch. South Dakota is one of the state’s challenging the constitutionality of the new law.

On the WBUR debate the other day, one professor kept insisting the “it’s not constitutional” position is not a principled one, because other federal mandates — Medicare, for example — have gone unchallenged.

I’ll provide the poll here now, but encourage you to keep an open mind, listen to the debate and then respond.

Do you believe the federal government has the authority to require states to adhere to the new health care legislation?poll

Here’s a live blog of today’s debate:

11:10 a.m. – Here’s the background piece from Nina Totenberg at National Public Radio:

11:12 a.m. Jackley: Says he joined the lawsuit because of federal encroachment on state’s rights. The Commerce Clause gives the federal government wide realm to be involved, but this goes too far. The issue of the impact on the state budget ‘goes hand in hand.’ Congress has exceeded its authority and the legislature in South Dakota is in better position to make the reform.

11:14 a.m. Hatch: It’s no more than a political stunt. (David) Rivkin, the lawyer representing the challenge, argued the Senate had no right to investigate torture. We’ve had COBRA, that extends insurance for people who lose their jobs.

Q: This is the first time the government has said, “You have to buy this product.”

Hatch: This doesn’t take effect for four years. The person making $50,000 would pay a fine of $500, unless they can’t find a policy. It’s a mandate in a sense that the IRS is a mandate.

11:17 a.m. – Jackley: This is the first time the federal government has come down and said, ‘you shall buy a private product.’ This is economic unactivity. That is why the Lopez and Morrison line of decisions — which limit Congress — come into play. (Here’s Lopez. Here’s Morrison.)

Hatch: Companies aren’t going to build auto plants in the U.S. without health care. A state can opt out of the law if it provides some sort of coverage.

11:20 a.m. – Caller from Roseville: The federal government tells me if I travel outside of the country, I have to have a passport. If I own a home, I have to have insurance. How is this different.

Jackley: Those are individuals making personal choices to enter into economic activity. We’re talking about penalizing folks for not taking certain actions. If you allow Congress to regulate both economic activity and economic inactivity, that’s not what the Founding Fathers said. Those powers not enumerated in the Constitution, revert to the state. While there needs to be health care reform, that should be left to the states. They’re in a better position to understand their constituents’ needs and their state budgets. That’s the real big push for the lawsuit.

Hatch: We have Social Security. You can be drafted if the federal government wants. To say that health care isn’t related to interstate commerce, that’s a stretch. We have COBRA and ERISA. Over 60% of Americans have their health care through the government one way or the other. The idea that somehow the other 40% is going to be pure and unregulated is a little absurd.

Jackley: If you allow this extent of involvement by Congress, there is nothing to prevent them from getting involved in every area of our lives. This is a bipartisan litigation. Look at the 13 states in the litigation, four have Democratic governments. You have bipartisan agreement that there are colorful claims.

Q: What is a colorful claim?

Hatch: It means you’re not going to get sanctioned by the court for making a ridiculous claim. All of the states involved are heavily Republican. The only one who’s a Democrat is in Louisiana, which follows the Napoleonic Code, for cripes sake.

Q: Why bring in a controversial figure like David Rivkin in this?

Jackley: When you talk about this group of attorneys general, it’s a pretty diverse group. I was a former U.S. attorney. So were two others. Beginning back in December, my governor was aware of the discussions and I, as attorney general, made Sen. Thune and Rep. Johnson aware. We had to pull the trigger Sunday night at 9 o’clock. I was on the phone e-mailing the chief of staff on Tuesday. I wanted to make sure it was the right decision for South Dakota. I know there’s talk about Rivkin and what we’re paying and I looked at what it’s going to cost our state. I’ve set a budget of $25,000 for my state. Rivkin is not germane to the issue of whether this is constitutional.

(news break)

11:35 a.m. – Q: How long will it take to determine whether the law is constitutional?

Jackley: It will have to move through the district court, then it will be appealed to the 11th Circuit. That will take a couple of years. There’ll likely be more states joining and the suit will be amended. The court will likely be asked to enjoin federal officials. The penalties don’t start kicking in until 2014, but some of the measures kick in sooner than that (closing the Medicare “doughnut hole” for example)

Hatch: There’s 30 million people going around… they’re going to a doctor to get treatment. They don’t just stay home and die. They go to emergency rooms and they’re breaking the bank of the hospitals and, frankly, some insurance policyholders. It’s clearly interstate activity.

11:38 a.m. Q: Will reimbursement make up for South Dakota’s Medicaid costs.

Jackley: No. Our governor says we’re looking at a known cost of $57.3 million increase. That’s pretty substantial for South Dakota. Forty-three cents of every dollar goes toward education.

Hatch: If your state already has Medical Assistance, I don’t see why this would require a new bureaucracy.

Jackley: Are you saying there’s a funded Medicaid mandate after 2016?

Hatch: I don’t know if I’m going to be alive after 2016?

Jackley: I think that answer is ‘no,’ Mike.

11:42 a.m. Q: How does this mandate differ from other federal mandates?

Jackley: When you look at Medicaid, it’s a federal-state partnership that has a lot of opt-out provisions. This one turns from a partnership to a dictatorship. There are points at which you cross that line. Requiring all Americans to purchase insurance or be taxes crosses that line.

Hatch: President Bush brought up No Child Left Behind and no money. And I didn’t see any states file a lawsuit seven minutes after he signed the bill claiming it was an unfunded mandate.

>> Gary Eichten brings up an interesting case: Gonzales v. Raich, which answered the question of whether the federal government can prosecute someone for smoking marijuana — in violation of federal law — in a state which has allowed the use of medical marijuana.

11:49 a.m. – Hatch: In this case (above) we’re dealing with health care, which is already heavily regulated by the federal government. There’s all sorts of direct regulations of hospitals and doctors. It’s one of the most heavily regulated areas of commerce and to say at this late stage that it’s not is wrong.

11:51 a.m. – Q: Could the court issue an order preventing the law from taking effect?

Hatch: They could. It should be resolved before it fully takes effect. Small businesses will get a 4% credit. Is that going to be enjoined?

Jackley: The judge is going to be looking at this. We’ll be talking about irreparable harm. As this thing kicks in and we get the detriments, it should come soon. One nice thing is that it’s really a legal question, we’re not looking at extensive fact-finding and depositions. We used a fillet knife to put together our arguments. This case can move forward fairly quickly.

11:55 a.m. – Q: Is this a state’s rights issue?

Jackley: Somewhat, it is. We concede the courts have said Congress can regulate economic activity, if you take it the next step and say Congress can regulate economic inactivity, it really will lead to all sorts of new regulations. If it’s not in the Constitution, the rights belong to the states.

Hatch: This is the whole Tea Bag thing.

11:56 a.m. – Q: If it goes to the Supreme Court, can we assume the court will uphold the lawsuit 5-4?

Hatch: The toothpaste can never be put back in the tube if they rule this way.

Jackley: I don’t like to make assumptions. The question needs to be asked. “When does Congress go too far in regulating our lives?” When you look at the argument that Mike has been presenting, my question to Mike is ‘when do we draw the line?’

Hatch: If we’re going to draw the line and say Congress shouldn’t regulate health care, then I guess we should file suit to stop Medicare, Medical Assistance, COBRA — the right to continue insurance after you leave an employer.

— end —

  • justacoolcat
  • BobT

    I thought the Republicans main desire on health care reform was to eliminate frivolous lawsuits. I guess its not the case when they want to sue for something.

  • Kate

    If the Republican Party is filing lawsuits, why didn’t they file a lawsuit against Mitt Romney’s bill that requires Massachusetts residents to purchase health insurance?


  • Tom

    OK. OK. OK. So here’s the deal. Those who oppose the concept of a federal mandate to purchase health insurance will never, ever, ever be convinced that this idea is OK. So, let’s end the debate. Rather that scrapping the entire health care law, attach a new provision to the law. In that provision, allow individuals (Not States) to opt out. This nullifies their argument against the mandate. However, and those who choose to opt out need to understand this, they are, then, fully responsible for the end cost of their health care, up to and including catastrophic care. Their responsibility to pay ought to be enforced through the garnishment of wages, income tax returns and any other sources of income avaiable to them. If they choose to avoid garnishment, they can be turned away for future health care in all but life-saving efforts.

  • Bob Collins

    Because the point of their lawsuit is that — in this case — Massachusetts is the only government entity that had authority to impose requirements on the people of Massachusetts.

  • vjacobsen

    I just heard the SD Attorney General use the words “unfunded federal mandate”. Isn;t that No Child Left Behind?

    Oh wait. Mike Hatch is talking about it!

  • J

    Sorry, Bob Collins and Gary E., but I had to turn off the show midway. Couldn’t listen to the twisting of the Constitution to whichever way the republican lawyers want it any longer…..

  • Bob Collins

    //In that provision, allow individuals (Not States) to opt out.

    That would kill the bill. Any insurance program needs people who aren’t likely to make claims (at least initially) in order to survive. Take your auto insurance. By not having an accident and making a claim, you’re paying for the people who do.

    There was a good piece on Marketplace last evening about this. (Go here)

    You also see this in the flood insurance system. People who want flood insurance have to wait 30 days after applying before it kicks in. Why? Because otherwise people would wait until just before the flood hits their house to pick up their phone and get coverage. It’s economically unsustainable in an insurance system — which spreads risk among a pool of people — to concentrate the risk.

  • Paul

    An opt-out to the individual mandate won’t work; it would undermine the new law’s ban on pre-existing condition exclusions and involve providers in the same kinds of cost shifting and (burdensome) debt collection procedures they must use now.

    On a minor point, did Mr. Jackley keep saying, “colorful” in reference to his state’s claims? I believe he meant “colorable,” which means valid or plausible.

  • Bob Collins

    He might well have been saying colorable and I heard colorful.

  • Joey

    -2 points to Mike Hatch for throwing out the red herring about COBRA &c, and for failing entirely to address the issue of activity vs. inactivity. Health care reform aside, I think we have a legitimate question on our hands. Can the federal government force us to buy things from private companies? I’d like to hear a _substantive_ debate about that.

  • CHS

    I listened to part of the debate, and read the live blogging. (welcome back Bob) I hear a lot about unfunded mandates, etc, but the only part of the issue that is valid to me is that the mandate requires people to enter into a business relationship with a private enterprise. That IS unconstitutional. It doesn’t matter how beneficial the relationship is, it crosses the line. Here is why, and how it could have been avoided (or fixed):

    The examples that are being provided of instances where the government mandates action do not apply, because they offer choice. I am mandated to buy car and home insurance because I choose to drive and choose to have a mortgage. It is within the right of the congress to regulate those business relationships under commerce laws because they are entered into as a choice by both parties. Requiring people to buy health insurance is requiring them to enter into a business relationship with a private enterprise, without choice. Suggesting that programs such as Medicare or Social Security are mandated programs similar to mandating health insurance is not a valid comparison, because those are programs administered by the government and are not for profit. The big winners in this are the health insurance companies who now have a population mandated to purchase their product. Never has there been an example of the government taking action that so greatly benefited a private business. Just look at the jump in stock prices for health insurance companies.

    Is universal (or as close as possible) coverage necessary and beneficial, absolutely it is. Rather than mandating that someone buy a product from a private entity, the choice should be this: Choose your own health insurance and pay for it as you wish, or get enrolled into a federal plan and have the premiums taken out of your paycheck pretax. If choosing to not have health coverage has been determined as an unacceptable burden to the rest of society, which it seems that there is consensus that is is, there should be a choice between private business or a federal (or state) plan. The government can mandate social security and take money for that, why not health care? I don’t see 401k plans or private investment being hurt by the “unfair” competition of a compulsory state run retirement plan. Health insurance should be no different.

    The government cannot mandate you have something without also providing it. That’s the bottom line.

  • Paul

    With respect to the individual mandate, it would be ironic if it is constitutional for the government to require that you buy something from the government, such as Medicare, but unconstitutional for you to be required (and actually, you’re not, because you can choose to pay the penalty) to buy something in a private market from a private company that you choose. Which is the greater intrusion on your choice? Yet those who oppose the law on the basis of the mandate seem to think that the latter situation is where the government has crossed the line.

    With regard to activity vs. inactivity, I think that if the inactivity (i.e., not buying insurance) has a substantial effect on interstate commerce (namely, it raises premiums and imposes greater costs on everyone else), the mandate is constitutional.

  • CHS


    It’s not ironic for it to be constitutional for the government to require use of something that it offers and unconstitutional to require something to be used that only exists in the private sector because the government does not exist for profit and is elected and accountable to the people. Private business is accountable to their board, and profit.

    Remove the backdrop of healthcare from the debate. How would people react to a massive and influential business lobbying the government to mandate that the population MUST buy their product or service, and it just so happens that the government is not allowed to compete in that market. Sounds like a recipe for making a few corporations even more influential and profitable.

  • Paul

    The objection to the mandate, however, is not based on the aggregation of power in the health insurance industry, it’s based upon the belief that the government lacks the power to require the purchase of health insurance.

    The other day on Morning Edition, the Florida attorney-general was asked whether or not his objections to the mandate meant it was more constitutional for the government to establish a single-payer health insurance system than to require purchase of health insurance. He dodged the question, but the implication from his argument was clear: the mandate is unconstitutional while single-payer, which requires a much greater exercise of the government’s power, is not.

  • JackU

    So CHS do I understand you to be saying that if the bill had included the dreaded “Public Option” that there wouldn’t be a problem?

  • vjacobsen

    I tried to get on to ask this, but here’s my question.

    Putting aside the issue that the requirement to have homeowners’ insurance and auto insurance is done on a state level, there is one MASSIVE flaw in the argument that health care insurance is different because you can choose not to drive or own a home is this:

    So, in MN, you are REQUIRED BY LAW to have car insurance. There are consequences to not having it. You might say, OK, that’s a choice to drive a car. True. BUT…if we follow your logic, then I say if you don’t have health insurance and you get hit by a train, tough luck. Go figure out how to take care of those injuries without using a system you didn’t pay for. Health care is not a right. You didn’t take the step associated with the access to health care, so you don’t get any.

    I’m sure most of us would say that’s just silly. (or, wait, that was the situation in the 80s, right?)

    I guess most people really would WANT insurance. What else would you do if you were hit by a car, had a stroke, or came down with cancer? Not get care? Or not pay the bills? I doubt many people have enough cash on hand to pay for serious medical treatment completely out of pocket. And that’s not fair to those of us who DO have insurance. We pay for your unpaid bills. I would argue THAT, more than any silly tax, infringes on my rights.

  • JackU

    @vjacobsen: If I understand the opponents of this correctly the difference between the car insurance mandate and the health insurance mandate is that we require you to register your car before you can drive it in MN. As a condition of that registration you must prove that you have car insurance. No such transaction with the state is a condition of the requirement. Just being a member of the society is the requirement. That is the part they feel crosses the line. (I don’t necessarily agree with that argument.)

    All states have some mechanism for dealing with the highest risk drivers. It’s called the “assigned risk pool” and there is a brief description of it here. (I’m familiar with it because my first insurance policy was an assigned risk pool policy. I hadn’t been driving long enough to qualify for a regular policy.)

  • CHS


    I never said the public option was “dreaded” or any other descriptor. My point is that it is unconstitutional to mandate the public to engage in business with a private enterprise without having an alternate choice. Having a public option gives a choice, and in my mind alleviates the constitutional rights issue. I’m not passing any judgment on how well any of the methods in the bill will alleviate our health care problems, only on the constitutionality of a mandate for coverage. I truly do believe it is unconstitutional to require everyone to enter into a business agreement when the only option is one existing as a private business.


    I believe there are two sets of objections to the mandate, one being that the federal government does not have the authority to mandate the states to participate. This is a state’s rights issue. The other is the objection to the mandate forcing individuals to enter into private business without an alternate choice, a constitutional rights issue.

    The state’s rights camp is getting all the press because they are the loudest and most obnoxious group right now. Also, it is the fastest developing resistance because the State A.G. can bring suite immediately. State’s rights has been a rallying cry for the Republican party for some time, and it’s being misused in this context. I don’t agree with the assertion that the federal government is overstepping states’ rights in this particular case.

    The constitutional rights issue has merit however, and I have yet to hear a valid argument as to how it is okay for the federal government to mandate that every citizen engage in business with a private enterprise without choice.

    I am not saying that it is unconstitutional for the government to require insurance because it is well established that a person not having insurance infringes on the rights of those forced to cover their emergency care, only that it is unconstitutional to require insurance when the only choice most people have is to get it from a private for profit entity.

  • Paul

    [Incidentally, I believe the crux of the issue is not constitutional rights, but constitutional powers. ]

    What is unclear to me about CHS’s argument is how the involvement of private insurance companies (which may or may not be for-profit) makes the requirement to have insurance unconstitutional. If the government set up a single-payer system paid for through taxes and contracted with private companies to administer it in return for payment of those taxes, would such a system be constitutional in your view? Why or why not?

  • Aaron

    Thanks for doing this Bob! I really wanted to hear it but got pulled into a meeting.

  • CHS


    As I said directly above, I don’t believe it’s unconstitutional to require insurance, per se. I said it’s unconstitutional to require it when the only real choice many will have is with a private business. I also don’t advocate for a single payer system, only for a public option in conjunction with the mandate. Do I oppose a single payer system? Not sure. I haven’t seen a proposal detailed enough to form a basis for opinion.

    Also, you’re right and you make a great point regarding constitutional rights vs powers. It’s the point I was trying to make regarding states rights’ (ie, constitutional powers, vs enumerated powers…) vs. individual constitutional rights. I’m not a constitutional lawyer by any stretch, so I have opinions on the Lopez and Morrison cases, but to make a judgment on how they apply to this situation with the states suing the federal government would be just my colored opinion.

    I do feel though that the individual mandate in current form violates the individual rights of citizens, and will be very interested to see how that plays out once the mandate takes effect, because someone correct me if I’m wrong, no individuals will be able to bring suit against this until it takes affect and someone is fined for not having insurance.