Tuesday, July 13, 2010

The states' due process claim

One of the grounds on which the 20 states in the Florida lawsuit have challenged the individual insurance mandate (ACA §1501) is that it violates the Due Process Clause of the Fifth Amendment. (Count Two of the amended complaint.) Specifically, they argue that, “[b]y requiring and coercing [individuals] to obtain and maintain such healthcare coverage, the Act deprives them of their right to be free of unwarranted and unlawful federal government compulsion.” (Amend. compl. p.24.)

Few commentators sympathetic to the states’ lawsuit have defended this claim—and understandably so. The basic problem is that §1501 does not appear to infringe any right that the Supreme Court has previously recognized as “fundamental.” The liberty interest in not being compelled to purchase health insurance is not really analogous to the handful of unenumerated rights the Court has found to be fundamental, such as the right to control one’s reproduction, to control the rearing of one’s children, or even to refuse unwanted medical treatment. Instead, the interest is principally economic: the right not to be forced to purchase something (or instead pay a penalty on one’s tax return). As such, §1501 should only trigger deferential “rational basis” review; to pass constitutional muster, it must only be rationally related to a legitimate governmental interest.

Even the most ardent opponent of the individual mandate must concede that there is a rational basis for §1501, at least as the Supreme Court has historically applied that standard. There is a solid empirical basis for believing that requiring all persons to acquire health insurance (1) mitigates the problem of adverse selection in the private health insurance market, (2) increases the likelihood that Americans will obtain their health care in more cost efficient settings, and (3) decreases the likelihood that people will suffer financial catastrophes as a result of unexpected medical conditions. Moreover, even if these empirical claims are contestable or misguided, it is nearly impossible to say that Congress lacked a rational basis for believing them.

Further, scores of state, local, and federal laws currently impose similar “compulsions,” many of which constitute more significant intrusions on liberty than §1501. Various levels of American government presently require people, among other things, to be vaccinated, to attend primary and secondary schools (or their equivalent), to register for the draft, to file tax returns, and to purchase automobile insurance. The idea that all these laws are unconstitutional lacks much currency in mainstream legal thought.

Finally, two of the justices whose votes almost certainly would be necessary to invalidate §1501—Scalia and Thomas—generally do not subscribe to the notion that the Due Process Clause protects unenumerated, substantive rights (though they have stomached the idea in particular contexts as a matter of stare decisis). They seem highly unlikely to extend the reach of substantive due process in a way that contravenes controlling precedent.

In short, the states’ claim that §1501 violates the Due Process Clause appears to be a nonstarter.