Ruling against health insurance mandate is a ‘tea party’ milestone

For nearly two years, the “tea party” movement with its call for limited government has made inroads in the political arena, but a Florida judge’s ruling last week declaring the health insurance mandate unconstitutional may be remembered as its moment of arrival in the courts.

Another judge in Virginia had made a similar ruling, but U.S. District Judge Roger Vinson’s decision gave voice to the tea party’s rallying cry that the Constitution put strict limits on the national government. Harkening back to the time of the American Revolution and the Boston Tea Party, he observed that even the hated British did not go so far as to “force people to buy tea.”

“Surely this is not what the Founding Fathers could have intended,” Vinson said. “We would have a Constitution in name only” if Congress can force an unwilling person to buy health insurance, he wrote.

To some small-government advocates, this legal battle is about much more than healthcare. They say the Constitution set up a federal government with limited authority over the lives of Americans. And if they win this round in the Supreme Court, their next target could be the far-reaching federal laws that protect the environment and restrict development.

By the same token, a defeat at the Supreme Court would put a major roadblock in front of the tea party agenda.

Since the New Deal era of the 1930s, Congress has had broad power to regulate commercial activity. “This is about taking the last step,” said Roger Pilon, a lawyer for the libertarian Cato Institute. “If the government can indeed tax you for doing nothing, then it is saying Congress’ power over all of us has no bounds.”

This legal counter-revolution has been led by Republican state attorneys and Georgetown law professor Randy Barnett, a libertarian whose 2004 book was called “Restoring the Lost Constitution.” He argued that the Constitution of 1787 gave Congress only limited powers, including the power to “regulate commerce,” but these limits were eroded by the Supreme Court in the 20th century. “The enacted Constitution has been lost and even forgotten,” he wrote in a tone of despair.

But if the Constitution were indeed “lost,” it has been rediscovered of late. “Once again we have made history together,” the Tea Party Patriots proclaimed last week.

Two judges have now declared the new healthcare mandate unconstitutional, two others have upheld it, and 12 more have dismissed challenges. It is likely to be at least another year before a test case reaches the Supreme Court.

If nothing else, the challengers have revived a constitutional debate with deep roots in American history. “This is not a marginal view or a tea party idea. It is mainstream and well-established that the national government was created to have limited, specified powers,” said Notre Dame law professor Richard Garnett.

But defining those limits in law has proven elusive, as he and other legal experts were quick to note. In the early decades of the 20th century, the Supreme Court struck down laws that banned child labor and ensured workers a minimum wage. The justices reasoned that because a factory or mine was a local business that did not cross state lines, it could not be controlled under Congress’ power to “regulate commerce among the several states.”

In 1937, the court switched directions and decided if commercial activity were involved, Congress had broad authority to regulate it. That cleared the way not just for worker-protection laws, but for the civil rights acts in the 1960s and the environmental protection law of the 1970s.

All the while, however, conservatives said there must be some limit to federal power. Chief Justice William H. Rehnquist was among them. In 1995, he led a 5-4 majority striking down a law that made it a federal crime to have a gun in a school zone. States had similar laws of their own, and Rehnquist said that gun possession was not “economic activity” and therefore was outside Congress’ power to regulate commerce.

Rehnquist’s drive faltered a few years later, despite Barnett’s best efforts. In his one major Supreme Court case, he represented Angel Raich, a Northern California woman who used homegrown marijuana to relieve pain from a tumor.

Medical marijuana was legal under state law, but U.S. Atty. Gen. Alberto Gonzales insisted federal agents could raid her home and arrest her for using marijuana. Barnett argued that Congress’ power to regulate commerce did not extend to Raich, because she was not “buying or selling” drugs, but simply using marijuana grown by her friends.

The Supreme Court disagreed in a 6-3 ruling in Gonzales vs. Raich, and Justice Antonin Scalia said the federal government has a nearly unlimited power when seeking to regulate a national market. “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce,” he wrote. Rehnquist dissented, along with Justices Clarence Thomas and Sandra Day O’Connor.

Now, Obama administration lawyers cite Scalia’s words as their strongest defense of the mandate to buy health insurance. They say Congress could not require insurers to take persons with preexisting conditions if “free loaders” can refuse to buy coverage until they get sick.

The Obama administration will appeal last week’s Florida ruling to the U.S. 11th Circuit Court of Appeals in Atlanta. The earlier ruling in Virginia will be reviewed by the 4th Circuit Court of Appeals in Richmond.

The rulings have not convinced many legal scholars that the law will be struck down when it reaches the high court. Garnett, the Notre Dame professor who was once a clerk for Rehnquist, said he is among them. “If I had to lay money, I’d say it will be 8-1 to uphold the mandate, with Thomas in dissent,” he said.

david.savage@latimes.com

kathleen.hennessey@latimes.com