Clement’s Unconvincing Brief: Misreading The Constitution

Anti-ACA Attorney Paul Clement

As Judge Laurence Silberman, a leading conservative who once received the Presidential Medal of Freedom from George W. Bush, wrote last November, the case against the Affordable Care Act has no basis “in either the text of the Constitution or Supreme Court precedent.” Surprisingly, conservative superlawyer Paul Clement’s brief on behalf of the several states arguing that the Affordable Care Act is unconstitutional only really addresses one of these problems.

The most striking thing about the brief is how light it is on citations to cases. Normally, a brief filed in the Supreme Court will be absolutely riddled with case citations in an attempt to demonstrate that the result supported by the brief flows naturally from existing precedent. Clement’s brief, by contrast appears barren by normal standards. His entire summary of his argument includes only three citations to cases, and only one of those cases was decided after 1820.

Instead, much of Clement’s brief reads as if it were an exercise in how the Constitution could have been interpreted if it had never once been examined in the first 225 years of the Republic. He opens the brief with a lengthy argument that just one word in the Constitution’s text forbids Congress from passing a law requiring most Americans to carry health insurance (this passage omits citations, although there are no cites in the bolded part of the quote):

The Constitution grants Congress the power “[t]o regulate Commerce … among the several States.” While the term “commerce” has not always been “marked … by a coherent or consistent course” of interpretation, the term “regulate” has: For nearly two centuries, the Court has defined “the power to regulate” as the power “to prescribe the rule by which commerce is to be governed.” . . . It is axiomatic that the power to “regulate commerce” presupposes the existence of commerce to be regulated. It is not the power to compel individuals to engage in commerce so that Congress has something to regulate The difference between the two is self-evident. The power to regulate is far more modest and allows Congress to reach individuals only if they decide to engage in conduct that constitutes (or substantially affects) interstate commerce..

Unfortunately, for Clement, however, the Constitution has been examined many times by the Supreme and other courts, and it is clearly and unambiguously false that there is two hundred years of precedent defining the word “regulate” the way Clement describes it. To the contrary, Chief Justice John Marshall — a man who, unlike Clement, was actually involved in ratifying the Constitution — disagreed strenuously with Clement’s reading of the document.

In Marshall’s words, there is “no sort of trade” that the words “regulate Commerce” do not apply to. Moreover, Marshall wrote in the very first Supreme Court case interpreting Congress’ power over interstate commerce, the power to “regulate” something “implies in its nature full power over the thing to be regulated.”

Given John Marshall’s reading of the Constitution, it’s pretty obvious why Clement’s argument falls apart. If the United States can regulate any form of trade, that includes power over trade in health care services. Moreover, if this regulatory power includes “full power over the thing to be regulated” than Congress may do so however it chooses. That includes the power to require most Americans to pay for their health care through insurance rather than waiting until they become sick and then hoping they have enough money squirrelled away to ward off bankruptcy.

No doubt anticipating this flaw in his argument, Clement responds by splitting a very fine hair:

The federal government attempts to minimize the lack of constitutional grounding for a mandate to purchase health care insurance by recharacterizing it as something it is not: a “regulat[ion of] … the way in which individuals finance their participation in the health care market.” That is simply not true. The mandate does not regulate or even speak to how “individuals finance their participation in the health care market.” Nowhere in the mandate—or anywhere else in entire 2,700 pages of the ACA—did Congress require individuals to actually pay for health care services with the insurance that the mandate requires them to obtain. The mandate neither addresses the “health care services” market nor regulates the method of financing purchases in that market. All the mandate does is force individuals to purchase insurance, which they are free to use or not use in the event that they actually need health care services.

In other words, Clement argues, the ACA doesn’t actually regulate how people purchase their health care because it merely ensures that they have health insurance. It doesn’t actually require people to use it. Somewhere out there, Clement must assume, is a person who would rather buy insurance and pay for their own health care out of pocket rather than simply allowing the insurance company to cover their costs.

One doesn’t exactly have to have a Nobel Prize in Economics to understand why this argument is ridiculous.