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May 27, 2015

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Health care law: Legal challenge hinges on wheat, pot farmers, tax collection

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Two years of debate over the health care law’s constitutionality comes down to six hours of oral arguments before the U.S. Supreme Court this week — and how the nine justices feel about wheat farmers, pot growers and tax collection.

Nevada is among 26 states challenging the law passed in 2010 and set to be fully implemented by 2014.

The health care debate in Congress may have turned on death panels and pre-existing conditions, but for the Supreme Court, deciding the law’s constitutionality comes down to whether health care is a form of interstate commerce. The Constitution gives Congress power “to regulate commerce ... among the several states,” and the court has upheld that ability in cases involving wheat and pot.

In 1942, the court decided, in Wickard v. Filburn, that the government could fine Roscoe Filburn, an Ohio farmer, for growing more wheat than his quota allowed under the interstate commerce clause. Filburn wasn’t trying to sell the extra wheat, but the government argued — and the court agreed — that they could fine him because in skirting the rules to grow extra bushels for himself, he was either not buying wheat from another farmer or guaranteeing he’d have more to sell.

Sixty-three years later, the court upheld that precedent, in Gonzales v. Raich, when it allowed the government to stop two California women from growing medicinal marijuana because that activity also affected interstate commerce.

The Supreme Court hasn’t supported every application of the commerce clause. A ban on firearms within 1,000 feet of a school, for example, was struck down because the court couldn’t find an interstate commerce connection.

But there is a pattern, proponents of health care reform say: When the matter has to do with economics — as, they argue, the health care mandate clearly does — the court always sides with the government.

Lawyers for Nevada and the other states bringing suit have a retort: Although the government can regulate people who are actually engaging in an economic activity — such as growing wheat or pot — it can’t compel people to start engaging, or in this case, buy health insurance they wouldn’t otherwise buy.

“There aren’t cases where there’s been the inactivity (not buying insurance) that’s been regulated, and that’s why it’s a good, clever, doctrinal argument,” said Ian Bartrum, who teaches constitutional law at UNLV’s Boyd School of Law. “But I’m not sure the precedent stands for activity versus inactivity.”

The difference cuts to the core of critics’ complaint that the health care mandate robs individuals of their freedom not to buy health care. As Georgetown Law professor Randy Barnett has put it, if the government can force you to buy health care, why can’t it force you to buy a Chevrolet or broccoli?

But the freedom argument doesn’t undercut the interstate commerce argument, UNLV constitutional law professor Thomas McAffee noted, because not everyone is going to have to eat broccoli, but everyone is going to have some sort of health care.

Those opposing the mandate “have the same motivation as the person growing their own wheat or marijuana, which is to not be involved in the commercial system (they’re already in),” McAffee said. “You’re trying to prevent someone from screwing up the overall system.”

There are two other substantive questions about the health care law before the court.

One is a question of severability: If the mandate is ruled unconstitutional, can the rest of the health care law stand without it? The other is about coercion: Can the federal government force states to expand Medicaid enrollment, as the health care law does?

(Medicaid is an opt-in program where the federal government shares with states the cost — usually more than 50 percent — of providing medical coverage for the very poor. Suing states say the government used their reliance on federal dollars as leverage to force expansion.)

But the court may not get to all that.

There’s an out for the court, should the justices choose. A little-known, under-discussed law called the Anti-Injunction Act says one can’t sue to interfere with the process of tax collection; one can only sue over how tax dollars are used after they are collected. Because the law doesn’t fully take effect until 2014, the argument goes, the government has to collect 2014 taxes before anyone has grounds to sue.

But jurists think — or perhaps just hope — the court wouldn’t dare kick this can down the road.

“I suspect, just given the gravity of the case, that they will reach the mandate question,” Bartrum said. “People are really wanting an answer on this mandate question.”

The Supreme Court will spend Monday, Tuesday and Wednesday hearing arguments. The court plans to release audio files of each day’s proceedings, a move almost as unprecedented as three days of arguments. Usually, cases get just one hour before the court.

The court must render a decision by the close of the session in June.

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