Boehner Invents New Constitutional Doctrine Out Of Thin Air To Challenge Health Reform

House Minority Leader John Boehner’s (R-OH) passionate opposition to the notion that all Americans should be able to afford health care was apparent long before his orange-faced “Hell No You Can’t!” rant against the Affordable Care Act, so it should come as no surprise that he has signed an amicus brief challenging the ACA. Anyone who is actually familiar with the Constitution, however, would be quite surprised by the arguments Boehner’s brief makes. Indeed, the presumptive Speaker-elect appears to have invented an entirely new theory of the Constitution out of thin air in order to claim that the ACA is unconstitutional.

To be sure, there aren’t exactly any good arguments against the constitutionality of health reform. As conservatives are so fond of pointing out, health care spending makes up about one-sixth of the U.S. economy, and even ultra-conservative Justice Antonin Scalia agrees that Congress has sweeping authority to regulate the economy. Boehner’s brief nonetheless claims that the law’s minimum coverage provision — the provision requiring almost all Americans to either carry health insurance or pay slightly more in income taxes — exceeds Congress’ power under the Constitution.

As MIT economist Jonathan Gruber explains, this provision is essential to any health reform package that forbids discrimination against persons with preexisting conditions:

Insurance companies are also prohibited from excluding coverage due to preexisting illnesses. This is a highly popular reform, but it doesn’t work in a vacuum. If insurance companies must charge the same price to people whether they’re sick or healthy many healthy people will view this as a “bad deal” and not buy insurance. This results in higher prices that chase even more people out of the market. The result is a “death spiral” that leads only the sick to purchase insurance at very high prices. Several states tried such community rating reforms — offering health insurance policies within a given territory at the same price to all persons without medical underwriting — in their nongroup markets over the past two decades, and sharp rises in insurance prices ensued along with rapidly shrinking market size.

The fact that the minimum coverage provision is essential to making sure the rest of the bill functions properly has constitutional implications. A provision of the Constitution known as the Necessary and Proper Clause provides that Congress has the power “[t]o make all laws which shall be necessary and proper for carrying into execution” its power to pass economic regulation. In Justice Scalia’s words, this means that “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”


Boehner’s brief, however, essentially asks a Florida trial judge to rewrite this Necessary and Proper Clause to place a new an unheard of limit on Congressional authority. Under Boehner’s reasoning, a law can only be enacted under the Necessary and Proper power if some other law would become “legally ineffective” without it. Needless to say, Boehner fails to cite a single case supporting this claim.

The reason why Boehner can’t find such a case is because none exists. There is, however, a Supreme Court case called Sabri v. United States, which completely eviscerates Boehner’s legal claim. In Sabri, the Supreme Court held that — even though there is nothing in the Constitution expressly authorizing Congress to enact an anti-bribery law — Congress may still invoke its Necessary and Proper power to forbid people from bribing state officials in order to protect federal money that is entrusted to the states. Under Boehner’s reasoning, Sabri could not have come down the way that it did, since an anti-bribery law is hardly essential to making a grant of money to the states “legally effective.”

Since Boehner is expected to lead the House of Representatives for the next two years, America can only hope that he doesn’t take the same careless attitude towards lawmaking that he does towards the Constitution.