Now in Legal Rebels:
Posted Jun 25, 2012 11:44 am CDT
Critics say the Obama administration failed to appeal to conservative justices when it portrayed health care as a unique marketplace that could be regulated under the commerce clause.
Instead, some observers say, the administration should have referred to early legislation in an effort to show the framers accepted regulation similar to the health law’s insurance mandate, the Washington Post reports. One law, signed by President George Washington, required able-bodied men at least 18 years of age to buy a musket and ammunition. Another law required ship owners to buy medical insurance for their sailors and required the sailors to fund their own hospital insurance.
Administration officials told the Post that those arguments were considered and rejected because the early laws were different. The ship owner law didn’t apply to all Americans, and the musket law fell under a different constitutional provision. “There are always people in the academic world who think about clever arguments that one might make here and there,” a senior official told the newspaper.
The musket law had been included in several lower court arguments before Donald Verrilli was sworn in as solicitor general. It didn’t persuade one federal appeals judge, Jeffrey Sutton of the Cincinnati-based 6th U.S. Circuit Court of Appeals.
“To argue that Congress’ power to enlist individuals to defend the country’s borders proves that it may enlist individuals to improve the availability of medical care gives analogy a bad name,” Sutton wrote. “There is a difference between drafting a citizen to join the military and forcing him to respond to a price quote from Aetna.”
One law professor, Jeffrey Rosen of George Washington University, says the Obama administration made a mistake when it abandoned an argument made in the lower courts that would answer justices’ concerns about a slippery slope to regulation of other activities (the eat-your-broccoli-law argument).
“The limiting principle goes something like this,” Rosen wrote in the New Republic. “In previous cases denying Congress the power to regulate local activities such as guns in schools or violence against women, the court has drawn a distinction between activity that is truly local and activity that is truly national, in the sense that the states aren’t able effectively to regulate the activity on their own. When it comes to violence against women or guns in schools, states arguably have the will and the resources to respond to these problems.
“But when it comes to providing insurance guarantees for the uninsured, any state would be worse off if it tried to solve the problem on its own, because it would end up attracting uninsured people from other states seeking to take advantage of its benefits.”