November 13, 2011

Health Law Puts Focus on Limits of Federal Power

By ADAM LIPTAK

WASHINGTON If the federal government can require people to purchase health insurance, what else can it force them to do? More to the point, what cant the government compel citizens to do? Those questions have been the toughest ones for the Obama administrations lawyers to answer in court appearances around the country over the past six months. And they are likely to emerge again if, as expected, the Supreme Court, as early as Monday, agrees to be the final arbiter of the challenge to President Obamas signature health care initiative. The case focuses on whether Congress overstepped its constitutional authority in enacting parts of the law. Lower courts have reached divergent conclusions. Even judges in lower courts who ultimately voted to uphold the law have homed in on the question of the limits of government power, at times flummoxing Justice Department lawyers. Lets go right to what is your most difficult problem, Judge Laurence H. Silberman, who later voted to uphold the law, told a lawyer at an argument in September before the United States Court of Appeals for the District of Columbia Circuit. What limiting principle do you articulate? If Congress may require people to purchase health insurance, he asked, what else can it force them to buy? Where do you draw the line? Would it be unconstitutional, he asked, to require people to buy broccoli? No, said the lawyer, Beth S. Brinkmann. It depends. Could people making more than $500,000 be required to buy cars from General Motors to keep it in business? I would have to know much more about the empirical findings, she replied. Judge Brett M. Kavanaugh, who ended up in dissent, then jumped in. How about mandatory retirement accounts replacing Social Security? he asked. It would depend, Ms. Brinkmann replied.

Ms. Brinkmann was cut off before she could elaborate on her answers. In other settings, she and other administration lawyers have described what they see as the constitutional limits to government power, though not typically using concrete examples. They have said, for instance, that laws authorized by the Constitutions commerce clause must be economic in nature, must concern interstate commerce and must address national problems. They have also said that the health care market is unique. And they have suggested that questions about constitutional limits can miss the point. The only question actually before the courts, they said, is whether the particular law under review was within Congresss authority. Other cases, they said, can be decided as they arise. But there is reason to think that at least some Supreme Court justices will want to hear what a ruling in favor of the health care law implies and what precedent it sets. In 1995, when the court struck down a federal law that prohibited people from carrying firearms in school zones, Chief Justice William H. Rehnquist wrote that we pause to consider the implications of the governments arguments in defending the law that stopping activities that could lead to violent crime relates to interstate commerce because it affects national productivity. Under that reasoning, Chief Justice Rehnquist wrote, It is difficult to perceive any limitation on federal power, adding that if we were to accept the governments arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate. Chief Justice Rehnquist died in 2005, but three of the justices who joined his majority opinion Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas are still on the court. The concerns expressed by Chief Justice Rehnquist amount to what lawyers call the slippery slope. Many judges are reluctant to issue rulings without some sense of what their consequences will be in other cases. But defenders of the health care law say that such concerns are not a reason to doubt its validity. Slippery slope arguments are themselves often slippery, Walter Dellinger, who was acting solicitor general in the administration of President Bill Clinton, told the Senate Judiciary Committee in February. He gave an example. If it is within the scope of regulating commerce to set a minimum wage, he said, one might argue, then Congress could set the minimum wage at $5,000 an hour. But that would never happen, he said, for practical, political and legal reasons. When a divided three-judge panel of the United States Court of Appeals for the 11th Circuit, based in Atlanta, struck down in August the mandate that individuals purchase and maintain health insurance from private companies, slippery slopes were very much on the minds of the judges in the majority.

The governments position amounts to an argument that the mere fact of an individuals existence substantially affects interstate commerce, and therefore Congress may regulate them at every point of their life, Chief Judge Joel F. Dubina and Judge Frank M. Hull wrote. On Tuesday, on the other hand, a three-judge panel of the District of Columbia Circuit upheld the law. Judge Silberman, who had grilled Ms. Brinkmann so aggressively, wrote the majority opinion, and his discussion of the limits of Congressional power may have handed the administration a bigger victory than it wanted, because it presumably did not want to win on the grounds that Congress could do anything at all. Judge Silberman said he remained troubled by what he called the governments failure to advance any clear doctrinal principles limiting Congressional mandates that any American purchase any product or service in interstate commerce. Then he adopted a version of Mr. Dellingers argument. That a direct requirement for most Americans to purchase any product or services seems an intrusive exercise of legislative power, Judge Silberman wrote, surely explains why Congress has not used this authority before but that seems to us a political judgment rather than a recognition of constitutional limitations. Judge Silberman said there were Supreme Court decisions on issues like regulating the use of medical marijuana that had endorsed broad Congressional power to legislate in the name of commerce. It certainly is an encroachment on individual liberty, he wrote of the health care law, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family. In dissent, Judge Kavanaugh praised the majority for its honesty in describing what followed from its ruling. The majority opinion here is quite candid and accurate, he wrote, adding: The majority opinions holding means, for example, that a law replacing Social Security with a system of mandatory private retirement accounts would be constitutional. So would a law mandating that parents purchase private college savings accounts. Within hours of the decision on Tuesday, opponents of the health care law were issuing statements, and their theme was predictable. Like the government, said Randy E. Barnett, a law professor at Georgetown, the majority could identify no limit to an unprecedented power of Congress.