Constitutional Objections to Health Reform


A surprising number of grassroots rightwingers have been misled by the erstwhile intellectual and political leaders of the conservative movement into believing that there’s a viable constitutional challenge to health reform. This has become kind of a feedback loop, where politicians seeking conservative bona fides need to pretend to believe in the viability of the constitutional challenge even to the point of having state Attorneys-General file frivolous lawsuits in defense of the status quo. The more that conservative elites indulge these fantasies, the more the grassroots believes in them. Which makes it all the harder for elites to bring themselves back into line.

But to review, Article I Section 8 of the constitution gives authorizes congress:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

There’s long been a strain of thought which says this should be interpreted simply as a prohibition on state-level trade barriers with Commerce “among the several States” understood as basically about transporting goods across state lines. But from the beginning, the federal government’s powers have been interpreted rather more expansively than that. We had the Louisiana Purchase, the Bank of the United States, Henry Clay’s “American System,” a transcontinental railroad, land grant colleges, etc. And in particular since the New Deal the commerce clause has always been understood as granting wide-ranging authority to regulate the national economy.

Over the past 20 years the Supreme Court’s conservative majority has started to reel this authority in somewhat, declaring that the Violence Against Women Act and the Gun Free Schools Act aren’t really about commerce and that economic impacts were cited in the legislative history as just a kind of pretext. But nobody can seriously deny that health reform is a bona fide regulation of economic activity for an economic purpose. I know people who claim to seriously believe that it would be a good idea for the Supreme Court to reverse the past 75 years of jurisprudence and just enact libertarianism by fiat (I feel like these people aren’t thinking seriously about the consequences of this) but that’s a vague aspiration, not something a lawsuit launched in 2010 is going to accomplish.