Constitutional challenges to compulsory insurance: a guide through the gauntlet.

Health care reform is being assaulted from all sides. In January, the House of Representatives voted to repeal The Patient Protection and Affordable Care Act (the "Affordable Care Act"). For now, that effort will not succeed, owing to Democratic control of the Senate and the presidential veto. But conservative lawmakers in the House threaten to withhold key funding for implementation, and we can expect ongoing efforts to enact various partial amendments. Meanwhile, a core component of the reform law is running the gauntlet of constitutional challenges in dozens of courts. (1) So far, two federal district judges--in Richmond, Virginia, and Pensacola, Florida--have declared the individual mandate unconstitutional, as exceeding the power of Congress to regulate interstate commerce. Based on this, the Pensacola judge declared the entire act unconstitutional. Both judges were appointed under Republican administrations, but two other district judges (in Detroit and Lynchburg, Virginia), both appointed by President Clinton, have upheld the law. This stark ideological split suggests that crass judicial politics rule the day, reminiscent of the Supreme Court's Bush v. Gore decision a decade ago. Since the high court political balance continues to tip five-to-four in favor of conservative viewpoints, many people worry that some or all of health insurance reform will not survive. The prospects are not this bleak, however, either for the individual mandate or for judicial impartiality. First, to put things in context, of the two dozen lawsuits filed, about half so far have been dismissed on procedural grounds. Also, the lawsuits allege at least a half dozen separate constitutional arguments, most of which have not succeeded. Like a battalion charging a fortress, most attacks have been handily repelled, and it is only a few well-aimed arrows that have penetrated the government's defenses. Consider, for instance, the argument that compulsory insurance violates individual rights under the Fifth Amendment. Although the Richmond judge said that this dispute "at its core ... [is] about an individual's right to choose" to be uninsured, the argument that economic liberties are constitutionally guaranteed was not even made in that case, nor in many of the other cases. Where challengers have asserted individual rights, the argument has not found any traction--for good reason. Because having insurance does not require anyone to actually seek care, there is no basis for claiming a fundamentally protected right to be uninsured. Therefore, as the Pensacola judge explained in summarily rejecting the individual rights claim, it relies on reasoning about purely economic liberties that the Supreme Court has firmly repudiated ever since the New Deal. Equally unavailing is the lead argument that twenty-six states make in the Pensacola lawsuit. They contend that health reform violates their political rights as independent sovereigns, by forcing them to expand Medicaid, implement insurance exchanges, and enact insurance market reforms. The Florida judge soundly rejected these makeshift arguments, noting the obvious--that the Affordable Care Act goes out of its way to give states ample prerogative in how they choose to meet federal standards, and that states have the option simply to fall back on a federal default exchange if they wish to do nothing at all. States are even free, if they want, to withdraw entirely from Medicaid, as several have recently contemplated. For states that remain, the argument is entirely unconvincing that federal conditions are "coercive." The federal government pays for 90 percent of the costs of expanded Medicaid coverage, which saves most states as much as or more than they currently spend to care for the uninsured. (2) Against the government's position, courts have also agreed that the individual mandate is not, in essence, merely a tax, but rather a regulation enforced by a penalty. …