The United States Supreme Court is currently hearing Department of Health and Human Services v Florida, in which President Obama’s Health Secretary Kathleen Sebelius is appealing the decision of a Federal Court of Appeals that the Patient Protection and Affordable Care Act – Obama’s healthcare reform legislation, and his major achievement in domestic social policy – is in breach of the Constitution.
The core element of the legislation is the “individual mandate” provision in the Act, which requires individuals to obtain a minimum amount of health insurance, if not already covered by an employer’s or publicly-funded scheme. Arguments about that were heard yesterday; other constitutional questions relating to the Act were heard on Monday and will be heard today.
The particular constitutional provision the individual mandate is said to breach is Article 1, section 8 which sets the limits of Congress’s power to legislate:
The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate commerce with foreign nations, and among the several states …
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
The federal government’s argument is that Congress had power to enact this legislation under three parts of the edited text I’ve just cited: the “tax and spend” clause (the first paragraph above), because the individual mandate is enforced by means of a tax penalty; the “commerce clause” which gives power to regulate inter-state trade, since the Act is classic economic regulation of a national market; and the “necessary and proper” clause at the end of my edited quote, since it’s a reasonable means of achieving Congress’s reasonable policy aim.
The states argue that the individual mandate is not a tax, that the Constitution permits Congress only to regulate commerce, not to compel anyone to enter into commerce by buying a service, and that the “necessary and proper” clause does not apply since the individual mandate does not fall within “the foregoing powers” of Congress set out in section 8.
ABC news live blogged yesterday’s proceedings and has provided audio of yesterday’s arguments, and a transcript. You can read their full coverage of the case here, and excellent NPR coverage here. There’s also terrific coverage at the SCOTUS blog, the Volokh Conspiracy, Concurring Opinions and the Constitutional Law Profs Blog.
This case seems, and is, extraordinary from a British perspective. Partly that’s because we routinely misunderstand American politics, forgetting the importance of Congress and its fundamentally limited power compared to our own omnipotent Parliament, and almost always neglecting the power of the states and the balance the Constitution holds between them and Washington. For instance, my natural reading of the “tax and spend” clause was to see it not as limited to taxing and spending at all but as saying
The Congress shall have power to … provide for the … general welfare of the United States
That, though, is a reading arguably at odds with the entire limited-government, federal nature of the US Constitution. Cornell University’s excellent annotated Constitution puts me in my limey place, making clear that, although the point has been argued occasionally (phew!), the “general welfare” clause is generally read not as a free-standing power but as a qualification of the power to tax; in other words, it means
The Congress shall have power to lay and collect taxes … to … provide for the … general welfare of the United States
More legitimately, it seems extraordinary viewed from here that legislation promised by President Obama before he was elected, which he was voted in to deliver, and which was approved by both Houses of Congress, might seriously be struck down by judges – which is what Florida and the other respondent states are in effect asking it to do. I’m a great admirer of the United States and its constitution – it’s perhaps the most successful legal instrument ever designed by men. But the American way of constitutionalism seems, here, at odds with democracy. From a British point of view, it seems obvious that the government “of the people, by the people, for the people” of which Americans are rightly proud should mean that the people’s will is law.
But of course this is because, as Dicey argued long ago, we’re used to a sovereign Parliament which can enact legislation without judicial comeback. I know EU law is supreme, and that to a lesser extent Acts of Parliament are measured against human rights laws, but those are limited constraints from which Parliament if it wishes can free itself. They’re very different from the more rigid constraints on Congress.
So this case should serve as a warning to us from across the Atlantic. In particular, it’s a warning to those of us in Britain who count ourselves as on the social democratic side of politics and who believe the state can actively do good. Some people argue for a written constitution here, or for elements of a written constitution, such as a British version of the First Amendment. But any such move would inevitably give conservative forces greater power to block, by litigation, socially progressive legislation. Anyone who counts themselves liberal should pause to think how relatively easy it has been for Parliament to bring in civil partnerships, and will be for it to bring in gay marriage, as compared with the agonies the issue causes in America.
We should resist the siren call of the written constitutionists – and preserve, protect and defend our existing constitution, to adapt words from another context.