Autor: Lukáš Kindl (Institut mezinárodních studií FSV UK)
Reviewed Essay: Koppelman, Andrew. „Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform.“ The Yale Law Journal Online, 26 April, 2011, 1-24. http://www.yalelawjournal.org/the-yale-law-journal-pocket-part/constitutional-law/bad-news-for-mail-robbers:-the-obvious-constitutionality-of-health-care-reform/ (accessed 4 June, 2011).
What do mail robbers and opponents of health care reform have in common?
Seemingly nothing, one would say. Andrew Koppelman, a John Paul Stevens Professor of Law and professor of political science at Northwestern University, and a former senior editor of The Yale Law Journal, has a different opinion. In his article Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform, he uses this comparison to demonstrate the absurdity of arguments against health care reform that point to the originalist interpretation of the Constitution.
If we insist, in terms of a strict interpretation of the “necessary and proper” clause, that while the Congress has an enumerated power to regulate commerce among several states, and it can hence regulate health care insurance, it has no enumerated power to introduce an individual mandate to force people to buy insurance, Koppelman argues that we should similarly insist that while the Congress can establish post offices, it has no power to punish mail robbers.
The meaning of the “necessary and proper” clause is one of the central themes of Koppelman’s article, in which he makes his point that the Patient Protection and Affordable Care Act is constitutional. To support his claim, he points to the relevant paragraphs of the I. Article, Supreme Court precedents, and inconsistencies in the rulings of the two district court judges who declared the law unconstitutional. Koppelman assumes that the individual mandate is an indispensable part of the health care legislation that obliges the insurance companies to insure people with preexisting conditions. Without this mandate, the insurers would go bankrupt, as people would buy the insurance only once they get sick.We can identify six main arguments in Koppelman’s article why the health care legislation is constitutional.
First, he suggests that, according to the settled legal practice, the Congress can regulate activity that has a substantial effect on interstate commerce.
Second, he argues that the individual mandate is legal on the grounds of the “necessary and proper” clause interpretation, which is based on the Supreme Court precedent set in McCulloch v. Maryland, 1819, and reaffirmed in United States v. Comstock, 2010, stating that the means adopted in order to achieve implementation of constitutionally enumerated powers are to be determined by the Congress. It follows that the means are constitutional as long as they serve the legitimate ends.
Third, Koppelman reminds that the “necessary and proper” clause along with other enumerated powers express the intention of the Framers to give the Congress power to legislate in all cases in which the states are separately incompetent, as resolved at the Philadelphia Convention in 1787. He argues that the health care reform belongs to this category, for it requires a collective action. Koppelman explains that if the states act individually, those states which mandate insurance for people with preexisting conditions risk inflow of sick people and outflow of healthy ones.
Fourth, the author compares the individual mandate with Social Security, as it is also an insurance – against poverty in old age, and points to the power of the Congress to tax.
Fifth, Koppelman questions the objection that the individual mandate is unconstitutional since the Congress has no power to regulate inactivity. He argues that a decision to free ride on the health care system is an economic decision with economic consequences, but he admits that it is not certain whether this constitutes economic activity.
Sixth, the author holds the view that the specific nature of health care in relation to other kinds of commerce should be taken into account. He suggests that health is unpredictable, whereas health care is indispensable, but expensive.
Koppelman clearly states his arguments and supports them by concrete Supreme Court decisions in the past. His broad interpretation of the “necessary and proper” clause seems quite reasonable in the light of the historical development that has led to the current political practice when the Congress exercises much more powers than are explicitly enumerated in the Constitution. He uses many relevant comparisons, such as the establishment of the Bank of the United States or, more recently, a ban on growing marijuana for personal consumption.
The author convincingly displaces arguments made by the two federal judges that stroke down the health care legislation. For example, he discovers inconsistency in the ruling of the Florida judge, Roger Vinson, who, on one hand, acknowledged that means are constitutional if they are adopted to achieve legitimate ends and admitted that the Congress has power to prevent insurers from excluding people with preexisting conditions, but, on the other hand, argued that the individual mandate was so fundamental for the entire law that it invalidated the whole legislation.
However, Koppelman is not convincing in his justification of the health care legislation on the grounds of the commerce clause. He admitted that an economic decision to free ride on the health care system does not have to be an economic activity. He could have elaborated more on this question and find some reasons why this decision might constitute economic activity. When someone refuses to buy health insurance, he deliberately transfers the burden of costs to the providers of the health care or the taxpayers once he goes bankrupt. And this does constitute economic activity. It is a conscious activity, as no one can be sure whether he gets a serious disease, whereas everyone wants to be treated to restore to health. On the other hand, a decision not to buy e.g. a car is inactivity, as one is capable of realizing such a decision, so there is no transfer of costs to anyone else.
This is what Koppelman did not say. Instead he suggested that the commerce clause does not matter, since the individual mandate is justified by the interpretation of the “necessary and proper” clause that the Congress has power to legislate if the states are separately incompetent. However, the “necessary and proper” clause is usually understood as extending some of the enumerated powers, not creating entirely new ones. Therefore, the author should have paid attention to the commerce clause, as it is the power, which might be executed by passing the “necessary and proper” laws.
On the other hand, the argument that collective action is needed to implement health care regulation is a very good point, since it provides a detailed explanation of the obstacles of individual action. Koppelman speaks about race to the bottom and comparative disadvantages American states, which enact such legislation, might face. He also makes a comparison with economic disadvantages for states that prohibited child labor in the Progressive era.
Finally, explaining the individual mandate as a power to tax is quite misleading. It misses the fact that Social Security is a federal program paid from special taxes, whereas health insurance is a product provided by private companies. One cannot talk about a power to tax when the money goes to private companies. However, the comparison of the individual mandate with Social Security as identical cases of legally mandated duty to buy insurance is a good one if we do not talk about taxing.
To sum up, Koppelman presents plenty of well explained arguments why the health care legislation is constitutional. He uses relevant comparisons and refers to appropriate Supreme Court decisions. However, he does not elaborate further on the question whether a refusal to buy insurance is economic activity. On the other hand, he presents a good argument about collective action.
Unfortunately, the contribution of the article is compromised by author’s uncompromising attitude towards the Supreme Court and the Republicans. He somehow seems to predict that the conservative majority in the Supreme Court will strike down the health care law and calls the objections of the district courts silly. Furthermore, he describes the Republicans as a party of urban legends. Such statements make his otherwise valuable work less persuasive, especially when it comes to persuading those on the center who seem not to be persuaded.
 Andrew Koppelman, „Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform,“ The Yale Law Journal Online, 26 April, 2011, 1-24, http://www.yalelawjournal.org/the-yale-law-journal-pocket-part/constitutional-law/bad-news-for-mail-robbers:-the-obvious-constitutionality-of-health-care-reform/ (accessed 4 June, 2011).