The Coming 'Monstrosity' Battle
Robyn Blumner

After the Republican election sweep, presumptive House Speaker John Boehner wasted no time in promising to get rid of that "monstrosity" called health care reform.

Interesting that in an election in which secret corporate donors poured hundreds of millions of dollars into political attack ads to defeat Democrats, Boehner chose the word "monstrosity" to describe a program that benefits average folks. I can think of other apt uses for the word.

We'll soon see whether Boehner launches his congressional attack through frontal assault or death by a thousand cuts. Meanwhile, various legal challenges to the measure's constitutionality, filed largely by Republican state attorney generals are percolating through the courts.

These cases will test the objectivity of the Roberts Supreme Court. Will the court's conservative majority set aside longstanding court precedents under the Commerce Clause to reach a political result? Or will the court do what current case law demands and approve the constitutionality of the individual mandate -- the most controversial element of health reform?

Central to the argument of health reform opponents is their claim that the federal government doesn't have the power to require Americans to buy health care coverage or pay a tax penalty, because inaction -- the decision not to buy health insurance -- doesn't impact interstate commerce.

The Commerce Clause gives the federal government the authority to broadly act in any area of economic activity that affects interstate commerce. To get a sense of just how far into personal economic decisions Congress may go, here is a quick discussion of some key Commerce Clause decisions:

After the Civil Rights Act of 1964 passed, hotels, motels and restaurants in the segregated South claimed they could refuse to serve African American patrons since their local businesses didn't impact interstate commerce. That argument didn't fly.

In cases involving Georgia's Heart of Atlanta Motel and Ollie's Barbecue in Birmingham, Ala., the Supreme Court said Congress had the power to enforce the new law even against small establishments, since blacks who couldn't find motel accommodations or food at restaurants would be less likely to travel, impacting interstate commerce.

Just like the opponents of health reform, the owners of Heart of Atlanta and Ollie's demanded to be left alone in their inactivity. They were choosing not to engage in commerce with black patrons, while Congress was forcing them to. Congress won.

The court has accepted highly attenuated connections to interstate commerce as the basis for regulation. Consider the case of Roscoe Filburn, a family farmer in Ohio who was fined by the federal government for producing more wheat in 1941 than a quota allotted him under a Depression-era measure designed to limit supply and drive up prices. Filburn said he was raising the extra wheat to feed his chickens and livestock, not to sell. But the high court said by growing his own, Filburn would spend less for feed, affecting that market.

Although Filburn's demand for purchased wheat "may be trivial," the court said, when it is combined with others similarly situated, it "is far from trivial."

The high court reiterated this reasoning as recently as 2005 in Gonzales vs. Raich. Here, in a 6-to-3 ruling, the court upheld a federal ban on marijuana possession against two California patients who used medical marijuana grown for personal use. Again, the court made the point that the Commerce Clause applies to this conduct since home production and consumption of marijuana means they are not having to buy it, thereby affecting the national market.

Doesn't this reasoning directly apply to people who refuse to buy health insurance? The individual mandate is necessary because without it people would wait until they became sick to purchase health insurance, skewing the market and driving up insurance costs. Or they would never buy health insurance, shifting the cost of their inevitable medical needs to everyone else. One person's decision to forego coverage may be trivial, but that of thousands or millions is not. It would literally bring down a national health care system.

Under current precedent, health reform is constitutional. An intellectually honest Supreme Court would let the measure stand.

Available at Amazon.com:

The Backlash: Right-Wing Radicals, High-Def Hucksters, and Paranoid Politics in the Age of Obama

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The Disappearing Center: Engaged Citizens, Polarization, and American Democracy

The Virtues of Mendacity: On Lying in Politics

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The Political Fix: Changing the Game of American Democracy, from the Grassroots to the White House

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