Saturday, January 14, 2012

Making the constitutional argument

MA Attorney General Martha Coakley has submitted an amicus brief in the pending Supreme Court case about the national health reform legislation.  The brief focused on the "individual mandate" portion of the law.  I think it is really well done and I copy the argument summary here:

Having enacted six years ago a prototype of the comprehensive healthcare reform package that Congress would later adopt in 2010, Massachusetts is in a unique position to assess the rationality of the assumptions that underlay both enactments. Specifically, the Court has held that the Commerce Clause empowers Congress to regulate activities that substantially affect interstate commerce. Congress properly exercised that power in adopting a provision in the ACA that requires all non-exempt persons to purchase at least a minimum level of health insurance coverage. Through its legislative findings, Congress rationally concluded that those who fail to purchase health insurance despite their ability to pay for it (“free riders”) not only drain finite State and federal free-care resources, but also negatively impact the availability of privately-issued health insurance policies and the prices at which such policies are sold. Congress further concluded that curtailing the practice of “free riding” would make private health insurance coverage easier for individuals both to procure and to afford.

Having examined data for four years following the adoption of its own individual mandate, Massachusetts can attest to the rationality of Congress’s conclusions. Massachusetts now finds that its efforts to stop healthy people from opting out of purchasing health insurance have increased health-plan enrollment and helped decrease the rate of premium growth. These developments, in turn, prompted a significant reduction in governmental and private free-care expenditures. Because Massachusetts’s empirical experience demonstrates a strong link between eliminating “free riders” and improving access (and reducing costs), Congress acted rationally in drawing the same link as one basis for its regulation of activity affecting interstate commerce.

The Massachusetts experience further demonstrates that Congress was also empowered to enact an individual mandate under the Necessary and Proper Clause. That clause authorizes Congress to
take the steps necessary to implement legislation that falls within a specifically enumerated power. Thus, even if an individual mandate did not fall within the ambit of the Commerce Clause, the broader machinery of the ACA -- provisions broadening access, controlling costs, and eliminating denials based on pre-existing
conditions -- was constructed precisely to regulate the interstate features of the health insurance marketplace. That attacking the “free rider” problem is rationally related to achieving the ACA’s interstate commerce objectives likewise finds strong support in the Massachusetts data.

Finally, while Massachusetts has reaped many benefits as a pioneer in healthcare reform, its experience also demonstrates the limitations on a single State, acting alone. Many aspects of health insurance are the exclusive domain of federal regulators, while innovations by individual States have consequences beyond that State’s borders. This demonstrates both the interstate character of the health insurance market and the need for a coherent federal approach to its regulation.


The Medical Contrarian said...

Whether particular elements of the federal law are rational (or can be perceived as rational) is irrelevant to the constitutional issues involved. One can conceive of rational arguments to justify almost anything (thus the term rationalize).

The key argument is whether the mandate is constitutional. The constitution was created with the intent to limit federal power. Reasonable people may disagree as to the merits of limiting the power of the federal government. I for one believe that the risks of expansion of federal power outweigh any transient benefits that may be garnered in the short term.

Yes, the mandate may seem like a reasonable response to the free rider problem, but once you have rationalized unleashing of the federal beast to deal with gaming behavior of the population, where does it stop? We can declare with confidence that oversight will remain within reasonable bounds but that is not the lesson of history.

We can make fun of the broccoli example but the concept behind this example is clear. Once the mandate becomes precedent, where in the law is the limit on state power? We become dependent upon the existence of reasonable bureaucrats and judges and transition from the rule of law to the rule of men.

Anonymous said...

Not a Massachusetts resident, but I think her last paragraph is especially important. We cannot do this state by state; there will be remarkable inequities if so.


Paul Levy said...

Dear Contrarian,

Good points. Thank you.

The Court has to thread that needle carefully. I'm not a lawyer, but my understanding is that the rationale matters also when considering constitutional questions, i.e., there is no bright line that decides the legal issue. So, it feels like the AG's arguments are designed to make the "necessary" portion of the commercial/economic argument, in her hope of making the "sufficiency" question easier for the Court.

Maybe some lawyers will comment further.

Anonymous said...

Coakley's arguments are actually an argument for the unconstitutionality of the Federal law. The issue is not one of rationality or importance. The issue is one of responsibility. The Constitution divides up government responsibility between things that the Federal government should do, like national defense, and things that the States should do.

The Massachusetts experience is that states can make appropriate decisions and tailor laws appropriate to their local situation. It's successes are evidence that Federal intervention is not needed.

Anonymous said...

I also leave the legal questions to others who are qualified to comment on them but Ms. Coakley's logic about "free riding," subsequent supposed savings to the state, and effects on employee sponsored insurance (ESI) are intellectually dishonest.

Chapter 58 and its three amendments have added 350,000-450,000 net newly insured people (the exact number is by definition a moving target) to the insurance rolls in Massachusetts and few to none were “free riders” (that is, people who could afford insurance but chose not to buy it). About half of the net "new" 400,000 (out of 6,500,000 of us) were always eligible for Medicaid and would never have had to pay for health insurance anyways if they had simply signed up for it before 2006. The rest are almost all poor residents just above the Medicaid threshold who could not have previously afforded Massachusetts’ high premiums and still can’t. Instead they now – in theory -- receive insurance for free or highly subsidized instead of having to use emergency services funded by the uncompensated care pool.

On the matter of these added insured individuals and the effect of their not using the uncompensated care pool, Coakley left out the fact that Romney’s plan was that the uncompensated care pool should have -- in theory -- effectively gone to zero from $700 million, not just to $500million. Nor do the 'savings' numbers she quoted take into account that the legislature regularly underfunds its share of the pool. As a result the true cost of uncompensated care that she quoted to the Supreme Court is incorrect. Ms. Coakley also neglects to tell the Supreme Court justices about the cost of RomneyCare to the Federal government and Massachusetts taxpayers in other parts of the state budget, particularly in Medicaid and the program called Commonwealth Care.

Finally Ms. Coakley uses data in a misleading way to claim an effect on employer-sponsored health plans that is simply unsupported by the facts. Just as there is no evidence that there were many free riders in Massachusetts in the first place, even if some of the decreasing number of people who sign up for ESI in Massachusetts (down over 100,000 since the enactment of the law) needed to be coaxed, RomneyCare had very little to do with it. RomneyCare has no effect on self-insured ESI, which is how well over half the people in Massachusetts not on Medicare get their insurance

== Dennis Byron

Unknown said...


You are absolutely correct.

Congress has powers to make laws so long as they are "rationally related" to the objective Congress is trying to achieve, and is not specifically forbidden by the COTUS.

In this case the AG is suggesting to SCOTUS that the law is rationally related to what the law is trying to do, as is valid.

That does not mean the law itself makes sense for any other reason ... [It's statements like this that have my engineering degree and law degree bickering with each other in my head]


I agree with you on the last paragraph.

The commerce clause if a state issue is traditionally the domain of the state only and courts generally find it less likely that Congress is acting within it's Commerce powers.

If however (and this is the AG's intent) an issue can be shown to be a National issue, then a (any) states view can be outweighed by the National nature of the issue. The AG is suggesting this law involves a National issue (and the Congress can take action), not a state issue thus militating against the law in the first place.


I agree with you too. (I am very agreeable tonight)

The constitutionality of the law will likely fall squarely on the argument of the individual mandate and how that plays in the commerce clause framework.

The argument against upholding would be along the lines of the government forcing people to buy something they may not want or need.

If that part of the law falls, they whole law may be invalidated as there is no "severability" clause in the law that allows courts to "sever" parts of the law away that are unenforceable, and keep the rest of the law valid. This was one Federal Court holding already, theoretically until heard by SCOTUS should have put the law on hold.

If folks are bored (or really interested), take a look at Wickard v. Filburn and progeny to see the rise and fall, and rise again of the commerce clause in the US.

A humbly submitted personal opinion for some amusement =)