ACA and federalism: a bleg

Would state-level individual mandate patches to ACA be constitutional?

Intrade gives the odds for SCOTUS ruling the individual mandate unconstitutional at 77% today. I’m glad I didn”t put any money behind my rash prediction for upholding, though it may still be borne out.

That is, a federal individual mandate. Is there any constitutional bar on the states reintroducing it to patch ACA, assuming the SCOTUS Republican caucus don’t have the nerve to trash the whole law?

My foreigner’s take on the situation is no.

Suppose the Pirate Communist Party takes control of Vermont. Its 95.2% share of the vote has been called suspicious by the WSJ, but it was certified by Diebold’s electronic voting machines, and they can’t be wrong, can they. The new VPCP régime has acted energetically in its first week and

  • nationalised all industrial and commercial enterprises with over $10m turnover, and set up workers’ soviets to run them 
  • abolished intellectual property
  • required all residents to buy a set amount of broccoli and maple syrup, the new “healthy Vermonter breakfast”
  • changed the name of the state to the “Vermont People’s Republic”.

Is any of this unconstitutional? The second conflicts with one of the enumerated powers of the federal Congress, and is dubious. But the others? The broccoli and maple syrup statute has been carefully worded so as not to intrude into the citizens’ fundamental right to privacy – they are compelled to buy the stuff, not eat it. The nationalisation was non-discriminatory and no restrictions have been placed on interstate trade.

Back in the dismal real world, with the prospect of a worse disaster than my Vermont fantasy, the survival of Romneycare in Massachusetts is very strong evidence that there’s no legal bar to a state-level health insurance mandate.

So if the mandate loses federally in SCOTUS, what’s to stop the 15 Democratic-controlled state legislatures  from adopting an individual mandate patch to ACA? And since the law would rapidly become unworkable without it, would there not be strong pressure on Republican state houses to follow suit?

Author: James Wimberley

James Wimberley (b. 1946, an Englishman raised in the Channel Islands. three adult children) is a former career international bureaucrat with the Council of Europe in Strasbourg. His main achievements there were the Lisbon Convention on recognition of qualifications and the Kosovo law on school education. He retired in 2006 to a little white house in Andalucia, His first wife Patricia Morris died in 2009 after a long illness. He remarried in 2011. to the former Brazilian TV actress Lu Mendonça. The cat overlords are now three. I suppose I've been invited to join real scholars on the list because my skills, acquired in a decade of technical assistance work in eastern Europe, include being able to ask faux-naïf questions like the exotic Persians and Chinese of eighteenth-century philosophical fiction. So I'm quite comfortable in the role of country-cousin blogger with a European perspective. The other specialised skill I learnt was making toasts with a moral in the course of drunken Caucasian banquets. I'm open to expenses-paid offers to retell Noah the great Armenian and Columbus, the orange, and university reform in Georgia. James Wimberley's occasional publications on the web

24 thoughts on “ACA and federalism: a bleg”

  1. My native take on it is that there’s no federal constitutional bar to the states doing something similar to the mandate, but that in the case of each individual state the matter would still have to pass constitutionality under the state constitution. Which doesn’t actually have to give the state all the powers the federal constitution would permit.

    As far as the first two items of your VPCP platform, property rights are protected under the federal constitution, the state would have to pay for everything it nationalized or abolished.

    Perhaps more important is that states can’t prevent people from leaving, which essentially every “people’s republic” I’ve ever heard of has found it necessary to do.

    No question, if the mandate, and only the mandate, gets struck down, it’s going to be a mess. That’s why I’m expecting that the Supreme court will either go big or take a dive. Either they’ll chicken out on striking down this power grab, or they’ll gut it of the price controls, too.

    Ideally, if they find any part of it unconstitutional, they ought to strike down the whole mess; If Presidents don’t get line item vetoes, I don’t see why courts should.

    1. Brett is right. The Fifth Amendmen to the U.S. Constitution reads in part: “…nor shall private property be taken for public use, without just compensation”–and has, like the rest of the Bill of Rights, long been extended by constitutional jurisprudence to state governments.

      A state-level individual mandate (to buy insurance, or broccoli) would not violate this. It might as Brett says be struck down by a state court as a violation of provisions in its own constitution, but I don’t think many if any state constitutions contain provisions making this likely. (State police powers are pretty broad except when specified individual rights are at issue.) Even conservatives haven’t typically made arguments to the effect that state-level mandates would be unconstitutional, which makes their (recent) claims that they amount to tyranny when imposed at the national level a bit strange. I blogged about this a while back: http://www.samefacts.com/2011/11/conservatism/if-conservatives-think-the-individual-mandate-is-totalitarian-why-on-earth-do-they-back-a-commerce-clause-case/

      A week or so ago, Scott Walker, the famous or infamous governor of Wisconsin, suggested openness to state-level mandates (though hysterical pressure from the Right made him walk it back)

      1. “Even conservatives haven’t typically made arguments to the effect that state-level mandates would be unconstitutional, which makes their (recent) claims that they amount to tyranny when imposed at the national level a bit strange.”

        Not at all strange; Conservatives think the mandate is bad policy at any level of government, and unconstitutional at the federal level. Keep in mind that, since conservatives aren’t generally living constitutionalists, they’re perfectly capable of thinking some really bad ideas would be constitutional at the state level.

        “Imagine if one sub-section of our tax code was found unconstitutional, would the entire thing fall apart? Or just the law that altered it most recently.”

        That latter; The “tax code” was not enacted as one piece. I’m simply saying that laws should be upheld or struck down at the statute level; To strike down parts of bills effectively ‘enacts’ compromises Congress might not have enacted if presented to them.

        1. With great glibness: Not at all strange; Conservatives think the mandate is bad policy at any level of government, and unconstitutional at the federal level.

          With great seriousness:

          I have viewed the controversy around the individual mandate in the ACA through the lens of my teaching undergrads at Duke. In August 2011, I posted about how I had to change how I prepped to teach my Introduction to the U.S. Health System course for Fall 2011. The first 8 times I taught this course (from 1999-2008), the individual mandate was presented as a Republican approach to health care reform; by last Fall it had become the essence of Republican opposition to the ACA.

          http://www.samefacts.com/2012/06/affordable-care-act/teaching-the-individual-mandate/

          What’s worse than glib? How about glib and smug?

          1. Nah, you’re full of it. There’s a reason I said “conservative”, not “Republican”. They’re not the same thing.

          2. Brett, I realize that you are a singularly ontemptible creature – ignorant, arrogant,lazy and dishonest – but even you in your rage against reality ought to recognize that Republicans and conservatives are the same thing in America. Why Same Facts or Obsidian Wings tolerate your trolling, I can’t imagine, because your sneering, anti-American Palinesque stupidity contributes nothing to the conversation. You may now feel free to pull your usual “conservative” stunt of soiling yourself and vanishing into the cyber fog with your ass on fire, screaming “Keep the evil government out of my Medicare”.

    2. Striking down entire laws because one part is found unconstitutional would wreck havoc with all sorts of laws. Imagine if one sub-section of our tax code was found unconstitutional, would the entire thing fall apart? Or just the law that altered it most recently.

      Ideally, unconstitutional sections would not get into Law. In reality, it’s often very hard to predict what 5 folks will vote against 4 years in the future.

  2. There is no federal constitutional bar at the moment. Obviously, Massachusetts has had a mandate for more than a decade without constitutional incident. What stops this? Two things:

    1) It would not take much for ACA opponents to morph their current arguments from commerce to individual liberty (which they really are anyway) and argue that government cannot compel economic conduct as a matter of economic liberty. That would then impose the same action/inaction distinction on the states.

    2) The mandate appears to be unpopular, even in states with Democratic legislatures, so I cannot imagine any legislature doing it.

    1. don’t forget that the republican wing of the supreme court has shown a remarkable tendency to oppose states’ rights when it suits their radical right wing agenda.

  3. So far the VPCP programme is holding up pretty well: for the nationalisations and worker soviets of item 1 are OK if compensation is paid, point 2 falls like I said, but 3 and 4 seem fine. Brett’s practical objection on emigration is not germane to the legality of the fantasy.

    Howard’s comment on the politics of the state mandate is no doubt true – for now. But if only the mandate is struck down, and community rating and coverage of preexisting conditions stay in, the insurance industry will be desperate for a fix, any fix. Under the pressure of reality, the situation might change.

    I’d expect the SCOTUS judges – especially the swing voter Kennedy – to come down explicitly against the untenable libertarian proposition that “government cannot compel economic conduct as a matter of economic liberty” (using dollars to pay for things? making children go to school instead of working on the farm?), so its proponents would have a hard time of it in state courts.

  4. I suspect we are about to see just how wrong badly informed speculation about future Supreme Court decisions can be.

    1. Now that looks a safe prediction – tautologically safe. Any outcome whatever would prove you right.

  5. If the Supreme Court rules the mandate unconstitutional–well, how to put it?

    Article 4, Section 4 of the Constitution states that: “The United States shall guarantee to every State in this Union a Republican Form of Government”. Any Supreme Court justice who rules the mandate unconstitutional is perfectly capable of reading “Republican Form of Government” to mean the platform of the Republican Party.

    (btw, Congress does not have an enumerated power of “intellectual property.” Its enumerated powers are those of patent and copyright. Trademark creeps in on the commerce clause. Now if you believe Justice Scalia, Vermont might the power to abrogate the trademarks of any goods sold in Vermont. But I doubt that Justice Scalia would believe Justice Scalia on this point. He’s more likely to defer to the platform of the Republican Party.)

  6. The trademark win – thanks for the correction – should be symbolic consolation to the Pirate wing of the VPCP, though it was copyright they were really after.

  7. Well, my answer may depend slightly on whether ‘constitutional’ means ‘what a broad consensus of serious legal scholars would indicate’ or ‘what the current SCOTUS would decide’. The second one, of course, is the only meaning that matters.
    Going with that, I have little doubt that the current SCOTUS would find multiple ways to prevent full state takeover (not nationalization, but maybe statalization?), even with compensation. Abolishing IP would be thrown out even quicker (and even the scholars probably agree).
    On the other hand, as pointed out, Massachusetts has had a health insurance mandate for quite awhile without SCOTUS intervention (though of course Massachusetts is now a desolate North Korea-esque hell-hole of starving peasants in brutal re-education camps…).

    The name change one actually seems kind of interesting, as an intellectual exercise. Certainly there’s nothing that requires a state to call itself a ‘State of’; once again the Commonwealth of Massachusetts provides an example. However, there might be some kind of argument that the Federal United States admitted the ‘State of Vermont’ and no other, and by God, the State of Vermont is the entity that the U.S.A. will recognize. Once again, with this SCOTUS it probably comes down to less ‘what is the underlying principle’ and more ‘is this an outcome I like politically’, making me think that if the government of Rhode Island asked to rename itself to the less cumbersome ‘State of Rhode Island’, Scalia would be fine with it, but if Vermont tried to add “Peoples” or “Social” or similar, Scalia would fine some reason to strike it down.

    1. Quercus,
      Why do you think the Republican Justices would allow Rhode Island to drop “Providence Plantations” from its name? Do you think they are going to forget the inalienable right of Southern heritage?

  8. I’m not at all sure I understand what the goal here is. Is the Democratic Party the Party of Big Insurance?

    If we kill the mandate (and only the mandate) then we have a world that is great for everyone who is not yet sick, and no so great for insurance. With the luck, the endgame is all the insurers go bankrupt and the Feds pick up the slack, one way or another.
    Your plan is to stop that process in its tracks and have California and NY pay insurers a large amount of money so that Texans can avoid paying for insurance until the moment they need it. I don’t see how this scheme makes moral or political sense.

    1. ^THIS^, as the kids say. The mandate is the conservative, insurer-friendly aspect of the ACA. Strike that part only, and, health economists have told us, we get the “insurance death spiral” which ends with Medicare for All.
      At least, in theory. In practice… ah, Maynard, they’ll never let it happen. It’s sort of like how I was tentatively in favor of the ridiculous ‘sequester’ deal that Obama and Boehner struck – if the supercommittee can’t reach an agreement, we’ll automatically cut half a trillion in defense spending! I was willing to take that, because I think in the end that the constituency to replace the half-trillion in Medicare cuts would, ultimately, be stronger than the constituency to replace the defense cuts, and then at long last we would have some actual, meaningful defense cuts. But, no, there’s no way that’s going to happen. Even Leon Pannetta is declaring that it’s unthinkable. The defense cuts just won’t happen. I don’t know how they’ll be prevented, but they won’t happen, count on it. Just like the banks always win. And, likewise here, the insurance companies always win. No matter who’s in power, they will see to it that the big insurers stay in operation. The Democratic Party is, in the end, One of the Parties of Big Insurance, I’m afraid.

    2. Maynard Handley: If we kill the mandate (and only the mandate) then we have a world that is great for everyone who is not yet sick, and no so great for insurance. With the luck, the endgame is all the insurers go bankrupt and the Feds pick up the slack, one way or another.

      What is more likely to happen is the same thing that happened in Washington State when they tried universal health insurance without a mandate: Insurers will stop selling individual policies and just focus on selling group policies. Group policies avoid adverse selection problems just as much as the individual mandate. Insurance companies will remain profitable, but it will be disastrous for coverage, and it will suck even more if you’re unemployed.

  9. It seems to me that you can only find the federal mandate failing the N&P clause by either (1) totally overruling M’Culloch v. Maryland, or by (2) finding a mandate so far outside what a government can do that no amount of necessity as part of a comprehensive scheme (as to which, in the whole, there is and can be no Commerce Clause issue) can save it, so no one can do it. Ever.

    Brett and those like him dream of (1). I cannot imagine that Justice Kennedy is going to go for that, or the CJ for that matter, so it’ll have to be (2).

    Obviously, we’ll have to wait a little while longer to see.

  10. James
    one interesting thing about Medicaid is that it has the effect of redistributing lots of money from “Blue” states to “Red” ones. Mass and Calif for example, have a general 50/50 split with the federal govt for Medicaid (there are certain parts that differ, and the ACA Medicaid expansions are all federal) while Mississippi has a 82/18 split this year, i believe. Meaning, for every dollar of expansion in Medicaid in Miss, the federal govt bears a bit over 80cents of the expansion. It is not clear to me that there has been anything stopping Miss from declaring a plan to cover everyone in Miss via Medicaid (for the past 40+years). At some level, the fact that many of the Red states have some of the least expansive and generous Medicaid programs has got to be some sort of practical measure of ideology trumping economic self interest.

    Vermont is the state that has talked the most about using Medicaid to fill in the cracks for what has been called a “state level single payer” but it is really a multi payer system with a clearer Medicaid based back stop. It is a little surprising that no Red state Governor has made a similar case in the past decade or so using the argument of economic self interest to maximize the leveraging of federal dollars into a state. Conversely, at some point the “Blue” states may say fine, lets block grant and we will keep our money….not saying so may be another measure of ideology trumping economic self interest.

  11. The second item on the list (abolishing intellectual property) would be preempted by existing federal IP legislation under the Supremeacy Clause. The nationalization could have problems under the Fifth Amendment, as compensation would be required. The other two would be fine. A health insurance mandate — like mandatory vaccination — is the sort of things states can enact through their police power, but the federal government (lacking a police power unless and until Justice Breyer gets a fifth vote for his worldview) cannot.

    It is certainly true that many Republicans and some nominally conservative organizations, including the Heritage Foundation, endorsed a mandate in the 1990s. There are two salient points to note here: 1) The mandate-based alternative to the Clinton reform proposal was quite controversial among Republicans in Congress and many conservative and libertarian organizations were fiercely critical of the mandate proposal. The Cato Institute and CEI, among others, published critiques of these proposals at the time. 2) These proposals were put forward prior to the reinvigoration of federalism by the Rehnquist Court (most notably in U.S. v. Lopez in 1995), so there was much less attention to federalism-based arguments against federal legislation.

    JHA

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