Robert A. Schapiro, who teaches constitutional law at Emory University School of Law, offered these thoughts on Monday’s ruling in Virginia that struck down a portion of the federal health care law:

Judge Henry Hudson’s opinion holding unconstitutional the individual mandate in the recent federal health care reform legislation will certainly not be the last word on the issue, especially because the legal analysis is not well grounded in existing law.

With regard to Congress’s power to enact the mandate under its Commerce Clause authority, the opinion lays great emphasis on the distinction between activity and inactivity.  However, that simply is not a distinction that finds support in Commerce Clause precedent.

Rather, the issue is whether the overall scheme is necessary to the regulation of commerce.  For example, the federal Child Support Recovery Act makes it a crime willfully to fail to pay child support.  The law clearly regulates, indeed criminalizes, inaction, but it has been consistently upheld under the Commerce Clause.

The opinion is similarly unprecedented in rejecting the theory that the mandate comes within Congress’s taxing power.  The health care bill does not actually require anyone to purchase health insurance.  Rather, the bill imposes a tax on people who fail to purchase health insurance, unless they fall within certain exceptions.

Judge Hudson’s opinion mainly points out that the statute uses the word “penalty,” rather than “tax.”  Apparently, he believes it is unfair for Congress and the Administration to avoid the political costs attendant to imposing taxes, while still employing Congress’s taxing authority.  That may (or may not) be a laudable principle of governmental transparency.  However, it is not a principle of constitutional law.

The provision functions like a tax, is part of the Internal Revenue Code, and will indeed raise revenue.  Judge Hudson insists that the provision is not a “bona fide revenue raising measure.”  That is not a test of Congress’s taxing power that has been employed in at least 70 years.

If the opinion is taken at its word, it seems that any constitutional flaw could be cured by amending the statute to substitute the word “tax” for “penalty.”  The Constitution does not impose such formalistic requirements on Congress.  With regard to the powers of Congress, courts must look at what a statute does, not scold Congress for its choice of language.

Contributor: Jonathan Ringel in Litigation | subscribe to rss |   share