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The New York Times/ - Politics, Sex, 30 de Março de 2012
CLIPPING INTERNACIONAL (Supreme Court)
Broccoli Mandates and the Commerce
Clause
“If the government can do this, what, what else can it
not do?” asked Supreme Court Justice Antonin Scalia
this week in arguments on the constitutionality of the
requirement that nearly all Americans buy health care
insurance or face a penalty.
“All bets are off,” Chief Justice John G. Roberts Jr.
gravely added.
Thus did this week’s Supreme Court arguments over
the Obama administration’s health care law emerge as
a historic test of federal power versus individual liberty,
all the more remarkable given that just a few weeks
ago, the overwhelming view of constitutional scholars
was that this wouldn’t be a close case, with even
conservative justices likely to uphold the law.
That it now looks not only possible but perhaps likely
that the Supreme Court will strike down the health
care law as unconstitutional, probably in its entirety, is
a tribute to some skilled and passionate advocacy and
the persuasive power of conservative media — and
what seems a breathtaking departure from decades of
Supreme Court jurisprudence.
It’s always hazardous to predict a Supreme Court
outcome, no matter how pointed the questioning at
oral argument. This seems especially true when the
legal debate over health care has become so intensely
politicized. Pickets were marching around the
Supreme Court building. By their questioning, the four
conservative Republican appointees seemed to signal
their distaste for the law, while the four liberal
Democratic appointees seemed to embrace it. That left
Justice Anthony M. Kennedy in his usual position as
the swing vote, and he asked some tough questions,
at one point suggesting the government faced “a
heavy burden of justification.”
While the health care law has generated intense
passions on both sides, I don’t share them. Although it
seems well established that many Americans are
burdened with costly and yet woefully ineffective health
care, if I’d been elected president, I probably would
have focused my attention on the financial crisis and
the economy and moved more slowly on health care
reform. But I’m no expert on the byzantine subject,
which has confounded more than one administration,
and as far as I can tell, the legislation has had no
effect on me, my family members or friends, all of us
fortunate enough to have adequate health coverage.
But limiting Congress’s power to legislate under the
commerce clause is another matter, and could have
far-reaching, and unintended, consequences beyond
health care. Despite the often opaque and convoluted
arguments this week, the legal issues don’t strike me
as all that complicated. No one disputes that Congress
can enact laws to carry out powers enumerated in the
Constitution or necessary and proper to effectuate
those powers. Among the enumerated powers: “To
regulate Commerce with foreign Nations, and among
the several States, and with the Indian Tribes.”
As the nation’s economy evolved from largely local
markets to regional, national and increasingly global
ones, the Supreme Court has taken a progressively
broader view of Congressional power under the
commerce clause, even when individual freedom had
to be sacrificed. This included limiting one farmer’s
ability to plant wheat during the Depression because
his production affected the overall supply and hence
had an effect on interstate commerce, and, more
recently, upholding a federal ban on homegrown
marijuana even if the plant never crossed state lines.
The court has stressed that Congress needs only a
“rational basis” for concluding that economic activity
might affect interstate commerce, and even Justice
Kennedy’s somewhat stricter standard of a “tangible
link to commerce” based on “empirical demonstration”
seems readily met here.
With famed hospitals like the Cleveland Clinic
mounting national ad campaigns and health insurers
operating in national markets, there would seem to be
little argument that health care affects interstate
commerce and that one person’s decision to buy or not
buy insurance, just like one farmer’s decision to plant
wheat, would affect a national market. Congress has
estimated that health care services and insurance
account for 17 percent of the gross domestic product
and amount to more than $2 trillion annually.
But constitutional opponents of the law have seized on
the mandate requiring most people to buy health
insurance or face a penalty as an unconstitutional
infringement of individual liberty. They’ve argued that a
ban on individual activity that, magnified in the
aggregate, might affect interstate commerce (like
wheat farming) is fundamentally different from
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