If national health care reform is signed into law, its linchpin — the mandate that all Americans carry health coverage — likely will move from the White House to a federal courthouse, predict legal experts from across the political spectrum.

“There will be court challenges,” said health care consultant Peter Urbanowicz, former deputy general counsel of the U.S. Department of Health & Human Services.

As lawmakers hammer out the details of their health care proposals, a debate about the constitutionality of the mandate has raged from congressional committee rooms to op-ed pages. Liberal and conservative lawmakers and scholars are unanimous in echoing Urbanowicz’s prediction of future litigation.

For clues about how federal courts may handle the issue, some scholars are looking to a high court case having nothing to do with health care. U.S. v. Comstock challenges Congress’ authority under the commerce clause — a key element in the mandatory insurance debate. “I think it is the sleeper case of the term,” said Erwin Chemerinsky, dean of the University of California, Irvine School of Law, who believes that the individual mandate is constitutional.


Those who have jumped into this constitutional debate generally focus their firepower on Congress’ authority to regulate interstate commerce and to tax and spend for the general welfare. David Rivkin in the Washington office of Baker Hostetler, a former lawyer in the Reagan and Bush I administrations, has taken a bit of a bruising by his conservative friends and his usual liberal sparring partners for his view that the individual insurance mandate is unconstitutional on commerce clause grounds.

Under that clause, he argues, Congress can regulate activities that have an economic effect on interstate commerce. There is no such connection in requiring people to buy health insurance, he said.

Rivkin said he takes some credit for “teeing up” the constitutional issue for lawmakers and others by getting his views published in various media. And, he added, he sees signs of anxiety over whether the mandate is on firm legal ground in recent actions by the Senate Finance Committee.

First, he noted, Senate Finance Chairman Max Baucus (D-Mont.) ruled out of order an amendment to the health care bill that would have required expedited judicial review of the constitutionality of the mandate and the $750-per-adult penalty to enforce it. Baucus said only the Judiciary Committee had jurisdiction over such amendments, but Rivkin and others said that has not been common Senate practice. “I think the fact that proponents are hostile to expedited judicial review ain’t a sign of confidence,” he said.

Second, he said, Baucus sought an opinion on the constitutional question from the Congressional Research Service. The CRS report, although generally supportive of constitutionality, said the controversy concerning whether Congress can use the commerce clause to require an individual to buy a good or service is “the most challenging question” and a “novel issue.”

And finally, Rivkin said, committee staffers told him that the enforcement penalty is no longer called a “fine,” but a “tax,” which, he added, “suggests considerable anxiety about relying on the commerce clause.”

Rivkin, Urbanowicz and others who question the mandate’s constitutionality on commerce clause grounds rely primarily on two U.S. Supreme Court decisions: U.S. v. Lopez, a 1995 ruling striking down a federal law regulating guns near schools, and U.S. v. Morrison, a 2000 decision finding that part of the federal Violence Against Women Act exceeded Congress’ lawmaking power. In both cases, the justices did not find a substantial effect on interstate commerce and made clear that there are limits to this lawmaking power.

“If authority is implicit in the commerce clause to tell people to buy insurance, then clearly it’s an unstoppable power and any number of individual behaviors can be policed,” said Urbanowicz, managing director with consultancy Alvarez & Marsal Healthcare Industry Group. “I don’t think we’re ready for that. I struggle to think of a similar thing Congress has done in the last 200 years that would be like that.”

Even the high court’s most recent, major commerce clause pronouncement — Gonzales v. Raich in 2005, in which the justices upheld federal regulation of marijuana cultivated at home for personal, medical use — re-emphasized the requirement that the regulated activities be “quintessentially economic,” Rivkin said.

“I don’t need to be told how Congress has regulated every species of inter- and intra-state economic activities and quasi-economic activities,” he said. “I know the history of the commerce clause. But this is fundamentally different. Here you don’t have any behavior to regulate. You’re compelling people to engage in behavior.”


Chemerinsky, Jonathan Turley of George Washington University Law School, health care law expert Mark Hall of Wake Forest University School of Law and others who argue that the individual mandate is constitutional contend that Rivkin and his supporters are wrong in their interpretation of the high court’s commerce clause decisions.

And although opposed to the concept of an individual mandate, even some conservative scholars, such as Ilya Somin of George Mason University School of Law and Jonathan Adler of Case Western Reserve University School of Law, agree it is constitutional under the Supreme Court’s commerce clause rulings, but, they insist, the Supreme Court’s jurisprudence is wrong.

“Over the last 60, 70 years, the Court and the political branches have strayed very far from the text and original meaning of the Constitution,” said Somin.

Chemerinsky and Hall said Congress has the power to impose the mandate not only under the commerce clause but also under its power to tax and spend for the general welfare.

Chemerinsky noted that no federal taxing or spending program has been found to exceed Congress’ power in 70 years. And Congress’ ability to use its tax power to spend for health coverage was established long ago with Medicare and Medicaid.

And the high court, most recently in the Raich case, has made clear that Congress, under the commerce clause, can regulate just about any aspect of the national economy, said Hall, and the connection between health insurance and the economy is particularly strong.

There could be “safer” ways for Congress to proceed, said Chemerinsky and others. Turley said he privately urged some Democratic and Republican members not to pursue the mandate but to put the onus on the states to require health insurance or forgo federal funds under the health and transportation budgets. Chemerinsky suggested as an alternative a government-run, single-payer plan providing coverage for all Americans.

“The more Congress uses its fiscal tools as opposed to regulatory tools, the easier time it has avoiding constitutional-type challenges from the left or right,” said Case Western’s Adler.

But Congress is not going down those roads.

The Raich marijuana decision in 2005 was a victory for Congress’ commerce clause powers after a string of high court rulings limiting that power and strengthening states’ rights under the Constitution, Chemerinsky said.

But he said he would not generalize that the federalism revolution, which began in the Rehnquist Court and waned in Rehnquist’s last few years, was over.

“I think there are five justices who very much believe in that revolution,” he said, naming Antonin Scalia, Anthony Kennedy, Clarence Thomas and, based on some opinions they wrote as circuit court judges, John Roberts Jr. and Samuel Alito Jr.

“There haven’t been the cases in the Roberts Court, but now there is Comstock,” said Chemerinsky.

In Comstock, the justices this term will decide whether Congress exceeded its commerce clause power when it enacted a law permitting indefinite civil commitment of “sexually dangerous” persons after they have completed their federal sentences. The U.S. Court of Appeals for the 4th Circuit struck down the law on commerce clause grounds.

While Comstock may provide some guidance, it is unlikely to stop constitutional challenges to the insurance mandate. “It is an unprecedented thing for Congress to order individuals to get health insurance,” Turley said. “If this issue goes to the Supreme Court, I believe Congress will have a clear advantage. But it is not true this is such an easy proposition.”

Marcia Coyle can be contacted at mcoyle@alm.com.