WaPo Peddles Baseless Constitutional Attack on Health Reform

Perhaps inspired by Rep. Michelle Bachmann’s misinformed claims that the public option is unconstitutional, an op-ed in Saturday’s Washington Post makes the false claim that another key health reform provision is unconstitutional:

The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it. […]

Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.

For starters, the Post showed exceptionally poor judgment by choosing to publish the authors of this op-ed, right-wing attorneys David Rivkin and Lee Casey. The same duo labeled Amnesty International “un-American” after it criticized widespread human rights abuses at Guantanamo Bay, and they recently claimed that Bush-era DOJ memos authorizing the use of torture “prove we didn’t torture.” Rivkin once claimed that President Bush had unilateral authority to use weapons of mass destruction on Russia.

Saturday’s op-ed, however, is weak even even by Rivkin and Casey’s low standards.

In essence, the duo argue that Congress does not have the power to enact an individual mandate because such a mandate is “noneconomic” in nature. Yet while they are correct that the Supreme Court has held Congress’ power to be more limited when it regulates outside of the economic sphere, their claim that insurance regulation is not “economic” is frankly absurd.


The provision Rivkin and Casey take aim at would require most uninsured Americans to buy a product — health insurance coverage — which pools thousands of people’s premiums together and pays those people’s medical costs as they become ill. As Rivkin and Casey admit, the individual mandate would lower premiums nationwide by requiring more healthy individuals to buy into the system; while reducing the risk of catestrophic financial loss should a person who was previously uninsured experience catestrophic illness. It is difficult to imagine a law which has a more obvious economic impact than a requirement that all Americans be insured.

Neither the Lopez nor the Morrison case, which Rivkin and Casey point to in their op-ed, support their claim that insurance reform is not economic in nature. Lopez struck down a federal ban on guns in school zones; Morrison struck down a law providing federal remedies to the victims of violence against women. Thus, both cases involved activity that is far less economic in nature than the purchase of health insurance. Neither carrying a gun nor committing an act of violence involve a sale, a market, or an exchange of something of value. No employer hires workers simply to carry a gun into a schoolhouse; and there is little marketplace for cowardly acts of violence.

Simply put, Rivkin and Casey’s attack on health care reform has no basis in reality — and no grounding in the Constitution. Even right-wing legal academics have dismissed it as entirely without merit. Hopefully, next time these discredited attorneys submit a piece to the Washington Post, its editors will have the good sense to point them to a more appropriate publication.