REPORT: Van Susteren's imbalanced treatment of health care reform constitutionality

››› ››› JUSTIN BERRIER & BROOKE OBIE

Following the House of Representatives' passage of the Senate health care reform bill, Fox News' On the Record with Greta Van Susteren has featured an imbalanced roster of guests to discuss constitutional challenges to the legislation. Between March 21 and April 6, Van Susteren hosted 15 guests who claimed the bill is "unconstitutional," including many attorneys general who are planning to sue over the bill, compared to only one guest who argued the bill is "constitutional"; Van Susteren also hosted one attorney general who is involved with the legal challenges, but said only that the legislation was "unprecedented" without taking a position on its constitutionality.

On the Record hosted 15 guests who say the health care bill is "unconstitutional," and only one who called it "constitutional"

The following is a list of the guests who appeared on On the Record to discuss the constitutional challenges to health care reform and the dates they appeared:

Unconstitutional

Ken Cuccinelli (R-VA), Attorney General [3/22/2010, 4/2/2010]

Henry McMaster (R-SC), Attorney General [3/22/2010]

Bill McCollum (R-FL), Attorney General [3/22/2010, 4/2/2010]

Jon Bruning (R-NE), Attorney General [3/23/2010]

Chuck Grassley (R-IA), Senator [3/24/2010]

Bob McDonnell (R-VA), Governor [3/24/2010, 4/2/2010]

Orrin Hatch (R-UT), Senator [3/24/2010]

Sarah Palin (R), Fox News Contributor [3/26/2010]

Tim Pawlenty (R-MN), Governor [3/30/2010]

Mike Cox (R-MI), Attorney General [3/30/2010, 4/2/2010]

Jim Gibbons (R-NV), Governor [3/30/2010. 4/6/2010]

Tom Corbett (R-PA), Attorney General [3/30/2010]

J.B. Van Hollen (R-WI), Attorney General [4/2/2010]

Mark Hutchison, Nevada lawyer [4/6/2010]

Jan Brewer (R-AZ), Governor [4/6/2010]

No position on constitutionality

Greg Zoeller (R-IN), Attorney General [4/5/2010]

Constitutional

Jennifer Granholm (D-MI), Governor [3/26/2010]

On the Record guests repeatedly questioned health care bill's constitutionality without challenge

Cuccinelli: "The individual mandate" to purchase insurance "overreaches the authority of the Congress." Appearing on the March 22 edition of On the Record, Cuccinelli stated that "[t]he unconstitutional aspect is that the individual mandate on Americans that they must buy health insurance or face penalties overreaches the authority of the Congress under the commerce clause," while acknowledging "[t]here are no cases directly on point with what we're dealing with. Otherwise, this wouldn't be such an open question." [accessed via Nexis]

McMaster: Health care reform is "an assault on the state sovereignty and the liberty of the people, and it's got to be stopped." On the March 22 edition of On the Record, McMaster asserted: "The big question is, what does the Congress think gives them the authority to require people all over the country to buy health insurance if they don't want to buy it? There's nothing in the Constitution that allows that, and the 10th Amendment expressly prohibits it." McMaster also said the bill is an "assault on the state sovereignty and the liberty of the people, and it's got to be stopped." [accessed via Nexis]

McCollum: Health care reform is "taking the states' resources and putting it to use for the federal government's purposes." McCollum, appearing on the March 23 edition of On the Record, called the bill a "sweeping attack not only on rights of an individual to be free from the federal government telling them they have to buy a product or service. They could require you under the premise that would be in this bill to go out and buy a car or to go out and buy membership in a club or something." He also claimed the bill is "taking the states' resources and putting it to use for the federal government's purposes and manipulating the states to their end to a degree that is beyond the sovereign protections in the constitution for states." [accessed via Nexis]

Hatch: "They want to force people to do whatever they want them to do. That's what you call totalitarianism." On the March 24 edition of On the Record, Hatch said the individual mandate would amount to "the first time that your liberties would be taken away from you where you would be forced to do something you don't want to do. I just don't think that's constitutionally sound," and "[t]hey want to force people to do whatever they want them to do. That's what you call totalitarianism." [accessed via Nexis]

Gibbons: If health care passes, "[t]here's no reason to stop the federal government from deciding on what you eat that day."
On the April 6 edition of On the Record, Gibbons claimed that if the individual mandate passes with health care reform, "all of our Article 1, Section 7 limitations of federal power are for naught. They're out the window. There's no reason to stop the federal government from deciding on what you eat that day." Gibbons also called the legislation a "trespass on the rights of the citizen." [accessed via Nexis]

Fox News has been home to GOP AG's who wish to overturn health care reform

Continuing their activism against health care reform since the House passed its landmark legislation, Fox News and the Fox Business Network have hosted numerous Republican state attorneys general, giving them a platform to promote efforts to overturn that legislation through the courts. Many legal scholars have disputed the primary claim of the attorneys general that the bill is unconstitutional because it requires people to have health insurance.

Conservative legal scholars, other experts says bill is constitutional

Conservative law professor Adler: Supreme Court precedent would support constitutionality of mandate as part of "overarching regulatory scheme." In an August 22, 2009, blog post, Case Western Reserve Law professor Jonathan Adler stated that while he opposed Democratic health reform efforts, he could not support the argument that "neither the power to 'regulate commerce among the several states' nor the taxing and spending power could support" the health insurance mandate. He wrote:

As much as I oppose the various health care reforms promoted by the Obama Administration and current Congressional leadership (and as much as I would like to see a more restrictive commerce clause jurisprudence), I do not find this argument particularly convincing. While I agree that the recent commerce clause cases hold that Congress may not regulate noneconomic activity, as such, they also state that Congress may reach otherwise unregulable conduct as part of an overarching regulatory scheme, where the regulation of such conduct is necessary and proper to the success of such scheme. In this case, the overall scheme would involve the regulation of "commerce" as the Supreme Court has defined it for several decades, as it would involve the regulation of health care markets. And the success of such a regulatory scheme would depend upon requiring all to participate. (Among other things, if health care reform requires insurers to issue insurance to all comers, and prohibits refusals for pre-existing conditions, then a mandate is necessary to prevent opportunistic behavior by individuals who simply wait to purchase insurance until they get sick.)

Adler is a contributing editor at National Review Online, a member of and has been honored by the Federalist Society, has worked for the Competitive Enterprise Institute, and is a member of the Cato Institute's Supreme Court Review Academic Advisory Board.

Opponent of individual mandate Kerr: "I would expect a 9-0 (or possibly 8-1) vote to uphold the individual mandate." In a blog post, George Washington University law professor Orin Kerr, who served as a special counsel to Sen. John Cornyn (R-TX) during Supreme Court Justice Sonia Sotomayor's confirmation proceedings, stated:

In my view, there is a less than 1% chance that courts will invalidate the individual mandate as exceeding Congress's Article I power. I tend to doubt the issue will get to the Supreme Court: The circuits will be splitless, I expect, and the Supreme Court will decline to hear the case. In the unlikely event a split arises and the Court does take it, I would expect a 9-0 (or possibly 8-1) vote to uphold the individual mandate.

Blogging about such issues tends to bring out some unhappy responses, so let me be clear about a few things: (a) I don't like the individual mandate, (b) if I were a legislator, I wouldn't have voted for it, (c) I don't like modern commerce clause doctrine, (d) if I were magically made a Supreme Court Justice in the mid 20th century, I wouldn't have supported the expansion of the commerce clause so that it covers, well, pretty much everything, (e) I agree that the individual mandate exceeds an originalist understanding of the Commerce Clause, and (f) I agree that legislators and the public are free to interpret the Constitution differently than the courts and to vote against (or ask their legislator to vote against) the legislation on that basis.

But with all of these caveats, I'll stand by my prediction.

CRS: "[I]t seems possible that Congress could enact an individual coverage requirement that would pass constitutional muster." In a July 24, 2009, report that analyzed a hypothetical mandate, not any specific proposal, the non-partisan Congressional Research Service stated in the report's summary: "While it seems possible that Congress could enact an individual coverage requirement that would pass constitutional muster, there are various constitutional considerations relevant to the enactment of such a proposal." Later, the CRS report stated: "While there is no specific enumerated power to regulate health care or establish an individual coverage requirement, one can look to Congress's other broad enumerated powers which have been used to justify social programs in the past. In the instant case, both Congress's taxing and spending power, as well as its power to regulate interstate commerce, could be applicable." The report further found that "if Congress chose to require individuals to have health insurance by levying a tax, then using the revenue for funding health benefits" -- which the bill signed into law does -- "this could be viewed as an appropriate use of Congress's taxing and spending power."

Cornell law professor Dorf rejects both "libertarian" and "federalism" objections to mandate. In a November 2 FindLaw.com article, Cornell law professor Michael C. Dorf wrote that he "rejected" what he described as the "libertarian" "objection that an individual mandate would be an unprecedented burden on liberty because it would affirmatively direct conduct, rather than either forbidding conduct or imposing affirmative obligations on only those who engage in conduct that the government has the power to forbid." He added that "there are substantial precedents for such affirmative obligations and even if there were not, there is no reason in principle why an affirmative duty is a greater restriction on liberty than a prohibition or condition." He also assessed the "federalism objection" to the mandate's constitutionality. Dorf noted that there "is nothing in the text or history of the Constitution to support" the conclusion that the Constitution forbids Congress from mandating that individuals engage in market activity. Dorf then cited the landmark 1819 McCulloch v. Maryland case, which states: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." Dorf also wrote that "the individual mandate is 'plainly adapted' to the undoubtedly legitimate end of regulating the enormous and enormously important health-care sector of the national economy. It is therefore constitutional."

UC Irvine dean Chemerinsky: Constitutionality of reform proposal, including mandate, supported by "unbroken line of precedents stretching back 70 years." In an October 23, 2009, Politico piece, University of California-Irvine dean Erwin Chemerinsky stated, "Under an unbroken line of precedents stretching back 70 years, Congress has the power to regulate activities that, taken cumulatively, have a substantial effect on interstate commerce." Chemerinsky further stated:

Those opposing health care reform are increasingly relying on an argument that has no legal merit: that the health care reform legislation would be unconstitutional. There is, of course, much to debate about how to best reform America's health care system. But there is no doubt that bills passed by House and Senate committees are constitutional.

Some who object to the health care proposals claim that they are beyond the scope of congressional powers. Specifically, they argue that Congress lacks the authority to compel people to purchase health insurance or pay a tax or a fine.

Congress clearly could do this under its power pursuant to Article I, Section 8 of the Constitution to regulate commerce among the states. The Supreme Court has held that this includes authority to regulate activities that have a substantial effect on interstate commerce. In the area of economic activities, "substantial effect" can be found based on the cumulative impact of the activity across the country. For example, a few years ago, the Supreme Court held that Congress could use its commerce clause authority to prohibit individuals from cultivating and possessing small amounts of marijuana for personal medicinal use because marijuana is bought and sold in interstate commerce.

Wake Forest law professor Hall says mandate falls within Congress' regulatory and taxing powers. In an August 2009 blog post, Wake Forest law professor Mark Hall wrote that "Congress has ample power and precedent through the Constitution's "Commerce Clause" to regulate just about any aspect of the national economy. Health insurance is quintessentially an economic good." He further stated that "even if a simple mandate were not a valid "regulation," it still could fall easily within Congress's plenary power to tax or not tax income."

Fordham law school dean Treanor: Mandate consistent "with well-established precedent that runs back more than 70 years." NPR reported:

But William Treanor, the dean of Fordham University's law school, said he's confident an individual mandate would be held constitutional if it went to the Supreme Court. Treanor said the mandate to buy health insurance would be seen by the high court as part of Congress' power to regulate interstate commerce.

"The view that it's not consistent with the enumerated powers is at odds with well-established precedent that runs back more than 70 years," he said. "I think this is very clearly something that Congress can do under the commerce clause power."

John Marshall Law professor Schwinn: Mandate "all too squarely falls within the recent and settled jurisprudence." In a September 25 blog post, John Marshall Law School professor Steven Schwinn concluded that "the individual mandate all too squarely falls within the recent and settled jurisprudence," writing that "an individual mandate is almost certainly the kind of economic activity that the Court would uphold under Congress's Commerce Clause authority" based on recent claims that "allow Congress to regulate activities that have a "substantial effect" on interstate commerce."

Yale law professor Amar reportedly says mandate enforces through taxation would be an exercise of "fundamental constitutional power." NPR further reported: "Yale legal scholar Akhil Amar said the fact that a requirement to buy health insurance would be enforced through fines shows Congress is exercising an even more fundamental constitutional power: its power to impose taxes. Amar says courts should not be concerned that such a mandate has not been used before. 'There's a first time for everything. Before there was a federal bank, there was no federal bank; before there was a Social Security Administration, there was no Social Security Administration,' Amar said. 'Have we ever had a law just like this before? No. That's why it's being proposed. That's true of many laws.'"

UC-Hastings law professor Massey: Mandate constitutional as part of regulation of health care market. In an August 23, 2009, blog post, University of California-Hastings law professor Calvin Massey cited Adler's blog post, writing: "after Gonzales v. Raich the commerce power permits regulation of activities that, standing alone, might not be permissible but which are subject to regulation because their regulation is necessary and proper to the accomplishment of a valid larger regulatory scheme. No doubt Congress may regulate the market of health care insurance and requiring everybody to buy insurance is necessary and proper to the accomplishment of the scheme. As Adler notes, if insurers must insure all comers it is necessary and proper to require people to buy insurance before they are ill."

Yale Law professor Balkin: Supreme Court "would have to reject decades of precedents" to find mandate unconstitutional. In a February 11 article in the New England Journal of Medicine, Yale law professor Jack Balkin stated that passage of an individual mandate would be constitutional under both the General Welfare Clause relating to Congress' taxing power and the Commerce Clause. He concluded: "Although opponents will challenge the individual mandate in court, constitutional challenges are unlikely to succeed. The Supreme Court will probably not even consider the issue unless a federal court of appeals strikes the tax down. In that unlikely event, the Supreme Court will almost certainly uphold the tax, at least if it follows existing law. To strike down the individual mandate, it would have to reject decades of precedents. It is very unlikely that there are five votes on the current Court for staging such a constitutional revolution."

NSCLC's Lazarus: Arguments that individual mandate is unconstitutional "have no basis in law." In a December 2009 paper for the American Constitution Society, National Senior Citizen Law Center public policy counsel Simon Lazarus stated that arguments that the individual mandate is unconstitutional "have no basis in law, neither in the grants of authority to Congress in Article I nor in limitations on that authority in the Bill of Rights, nor in the case law interpreting these provisions. Opponents' real grievance is with the law in its current state. Their hope is that a majority of the Supreme Court will seize on a challenge to mandatory health insurance as an occasion to make major changes in current law." Lazarus argued that an individual mandate constituted a regulation of interstate commerce. But he noted that, even if the courts were to disagree, in a concurring opinion in Gonzales v. Raich, Justice Antonin Scalia wrote: "Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce."

Posted In
Health Care, Health Care Reform
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