Tuesday, March 27, 2012

Police Power & The Health Care Mandate

Yesterday I wrote about the interstate commerce clause which grants Congress the constitutional power to regulate interstate commerce. My analysis did not involve the way the Supreme Court has come to understand the interstate commerce power over time. I think any citizen should be able to read his or her Constitution and have a chance to understand what Congress has the power to do and what it does not have the power to do.

Unfortunately, the constitutional jurisprudence of the Supreme Court has, over time, allowed Congress to regulate almost any (and every) aspect of economic activity. It is as though the Court has amended the words of the interstate commerce clause. In order to understand the Constitution these days, a citizen probably will have to become an expert in Supreme Court opinions.

If according to past Court opinions Congress has the power to regulate almost any aspect of economic activity, is it possible within this body of Court opinions to conclude the health insurance mandate is unconstitutional?

I listened to an interview of one of the attorneys in the case on a morning radio show. Apparently, it is thought that a fundamental conceptual way to decide that the health insurance mandate is unconstitutional is not to directly confront the enumerated commerce power, but instead to consider the meaning of the police power which is supposed to be a power reserved to the states by the 10th Amendment.

This police power contention may have some relevance but I think it is likely to rely on an incomplete understanding of the meaning of the police power.

Let's take it for granted that in fact the police power is a power reserved for state governments and that Congress does not have police power. The way in which this fact might be related to the question of the health insurance mandate is to consider the attributes of the police power. Specifically, the police power is a power that applies to every individual. For example, murder is prohibited by state governments constitutionally through the police power. Any person who commits murder has committed a crime. Every person is prohibited, by the police power of state government, from murdering another. There is no exception. 

How might this aspect of police power be related to the health insurance mandate? The mandate requires every person to have health insurance. This attribute of the mandate is an attribute of the police power, not an attribute of the commerce power. The idea of the commerce power is that, as I wrote yesterday, Congress has the power to regulate exchanges between people. If a person chooses not to engage in a regulated exchange, then the power of Congress cannot reach that person. If Congress regulates commerce in wheat, then a person who does not touch wheat cannot be subject to the regulation. The health insurance mandate is applied to persons regardless of their choices or their actions. This is an aspect of police power, not the commerce power.

This makes some sense to me because it is a conceptual idea that suggests that Congress cannot compel a person to engage in an exchange so that Congress can then regulate the person's exchange that it forced. If this action by Congress is allowed as a part of the constitutional power to regulate interstate commerce, then indeed any aspect of a person's life would seem subject to regulation by Congress.

However, the police power, properly defined, has another important attribute. The police power is the power to prohibit. The police power involves the power of government being used to prohibit actions by people that will harm the person or property of another. Consider various crimes such as murder, theft, assault. Each of these is an action that government prohibits under the police power, and each of these involve actions by a person that harms the person or property of another. So police power has at least two attributes. One is that it applies to every person, and the second is that it prohibits actions that harm the person or property of another.

The health insurance mandate involves Congress asserting it has the power, not to prohibit harm to another, but to compel a person to help another. It seems to me that whether this power to compel applies to everyone or not, it cannot be, properly defined, a power that resides within the police power. So, I suspect this path to arguing that the mandate is unconstitutional will not work with the Court.

It seems that the Court has yet to confront the question of whether Congress has the power to compel commerce under the interstate commerce clause. It seems to me the best approach to this issue is to indeed say the Court has not confronted the question in the past, and therefore, there are no Court opinions that provide a precedent the members of the Court might feel they must follow in deciding this issue.

Perhaps there is an idea from the first commerce clause opinion, penned by Chief Justice Marshall, that justices today might find of central importance. Justice Marshall wrote that however interstate commerce is defined it cannot be defined in a way that implies there is nothing Congress cannot regulate. The insurance mandate, if declared constitutional, would imply there is nothing Congress cannot regulate in our lives. While it seems to me that many members of Congress, and many of those who have been our Presidents, already believe there is nothing in our lives that cannot be constitutionally regulated by Congress, I think the very idea of our Constitution would be voided by such an opinion by the Supreme Court.

It seems to me the constitutional issues in the health insurance mandate should be simple. The Court should opine that regulating commerce, by definition, means regulating exchanges that people voluntarily choose to engage in. Congress does not have the constitutional power to compel commerce because the action by Congress to compel is not, be definition, the same thing as the action by Congress to regulate.

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