David Rivkin on Fox News

David Rivkin Debates the Constitutionality of the Health-Care Reform on Fox News

Fox News: As lawmakers roll up their sleeves and prepare to debate over the proposed health-care reform we must ask ourselves one question: Is it even legal, under the US Constitution, to force each and every American to buy health insurance? For an answer, we will turn to the experts. With us is Professor Erwin Chemerinsky, Dean of the School of Law at the University of California - Irvine. We also have David Rivkin, a top constitutional law attorney and former official of the Department of Justice.

David, let me start with you. Congress has authority to levy taxes and interstate commerce. Where in Article 1, Section 8—or anywhere in the Constitution, for that matter—is Congress granted the power to force a purchase on an American citizen simply because they exist?

David Rivkin: Well, you put it exactly like I did in my op-ed piece. The short answer is nowhere. Let me underscore that the federal government is one of limited and enumerated powers. The states, on the other hand, are given broader police powers. If you cannot link what the federal government is trying to do to a specific grant in Article 1, it cannot be done. This applies regardless of how compelling the policy may be.

This particular bill exceeds the power of the Commerce Clause. Think about it: Congress is not regulating any conduct or activity, they are simply compelling people to purchase something. If the government can do this with health insurance, they could do it with anything. The proposed reform is simply too capacious for the Commerce Clause to support.

Fox News: Prof. Chemerinsky, people compare Individual Mandate to car insurance. This is a misplaced comparison, isn’t it? People aren’t forced to buy or drive a car; this is a voluntary activity, the control of which is left to the states. The framers purposefully left these police powers to the states. In this reform, however, we are talking about a federal health insurance mandate that would force people to buy a product, and if they didn’t buy the product they would be penalized. Didn’t the Supreme Court rule that Congress cannot impose a tax to either penalize people or control the conduct of the people?

Prof. Chemerinsky: This isn’t a tax. This is Congress using its power under Article 1, Section 8, to regulate commerce among the states. The reality is that virtually everyone is going to need medical treatment at one point or another. The Supreme Court has said that Congress can regulate any activity that can have a cumulatively substantial impact on interstate commerce. Clearly, people having or not having insurance has a substantial impact on interstate commerce. The only thing I agree with Mr. Rivkin on is that this is not a close question; Congress clearly has this power.

Fox News: Mr. Rivkin, I have browsed through some of these cases and noticed that the Supreme Court has given Congress latitude to regulate economic activity. If refusal to buy health insurance does negatively affect the marketplace, isn’t Congress within its means to deal with this impact by mandating coverage?

David Rivkin: It is not. Let me point out the 1995 Lopez case, which was a five to four decision. Also there is the Morrison decision in 2000, another five to four vote. Let me quote Justice Kennedy, who passed the pivotal vote, when he said, “There has got to be a limiting factor in the Commerce Clause. If there is no limiting factor, the federal government is no longer one of limited and enumerated powers.”

An infinitely capacious Commerce Clause would throw our dual sovereignty system out the window. It would render states irrelevant.

I would ask Professor Chemerinsky the question I have asked others in this argument and that is: Where is the limiting factor? Can Congress, under this same logic, mandate the purchase of cars or health-club memberships?

Prof. Chemerinsky: The limiting factor is this: Everyone is going to need healthcare in their life. Not everyone is going to need a health club membership or a car. The reality is that the health-care system is the largest single part of our gross domestic product. There is clearly a relationship to interstate commerce here.

Fox News: Here’s what’s troublesome to me: If I choose not to buy insurance, I am not engaging in any activity at all. Let’s say I get sick and don’t want to be treated. Who is to say that I have to have health insurance? How does this choice impact anyone other than myself?

Prof. Chemerinsky: If you get a communicable disease, you are going to be treated. If you get into a car accident, you are going to be treated. The reality is that people not buying health insurance do have a substantial impact on interstate commerce. The examples Mr. Rivkin gives are not relevant. Lopez was about Congress regulating if children could carry guns in schools. Morrison was about whether Congress could create a cause of action allowing civil suits for victims of domestic violence or rape.

David Rivkin: You are wrong. Congress ruled that carrying guns to school would worsen education, therefore worsen the intelligence of the children coming out of the schools, and therefore cause the economy to suffer.

The point is this: You can compel any kind of behavior for people that will have a positive economic impact. By the way, just because you choose not to buy government favored health-care does not mean anything. I know plenty of people who self-insure or buy catastrophic health insurance. Your health-care footprint can be zero. It’s not a question of making these people pay for the cost they inflict on the economy; what you want is to force them into a specific channel of mandated purchase.

Fox News: Both of you have written wonderful articles on this subject and we encourage our audience to read them. I have a feeling, however, that there will be nine people in black robes who will decide this issue—not us.

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