The Slate fray and others are again discussing the Patient Protection and Affordable Care Act now that a single federal district judge found the "individual responsibility requirement" (aka mandate; see section 1501, which also discusses the commerce power hook). Lots of other discussion too. Back in September 2009, I was involved in an online debate over the overall topic, as I covered earlier in the year. In part:
Although Article I gives the Congress the power to legislate for the common good, I would never argue that this means that health care is a constitutional right.
On the other hand, anyone who argues that health care is not a Human right, is saying that it is permissible to leave an uninsured hit and run victim bleeding on the side of the road.
To review: Constitutional right? No. Human right? You betcha.
I responded:
Art. I provides a means for Congress to legislate in the area. It is not necessarily the place to look to determine if health care is a constitutional right as such.
If it is a "human right," and we are all humans, it would seem to be a right we all have that is not enumerated as such -- a "right" being something that has remedies, and government is in place to better secure them, at times obligating them to help do this. This might make it a 9A right. I'd add that in many cases, the average citizen has no legal obligation to help such a victim.
I also would think that it would be hard to truly uphold equal citizenship if health care is provided unequally, or that a certain select group is deprived of it. This would make it an equal protection matter, particularly since the government is already involved in health care. Equality would also affect non-citizens, since they too are protected by the Constitution in various respects. Since Congress has a particular duty regulate interstate commerce, inequities in national health care policy would be its logical bailiwick. Similarly, federal tax policy at times tries to promote equality.
Other constitutional hooks can be considered.
See here. Someone else was resistant to the idea of framing it as a "constitutional right," and some refused to accept that we all had some sort of constitutional "right" to such protection. A "right" doesn't mean the best care is secured, any more than a right to a lawyer means you have some "dream team." It doesn't mean that courts are involved in all aspects of the question; a possible comparison is how separation of powers is a constitutional matter that often is left to political branches to be decided. It is no less of constitutional dimension.
As I noted, perhaps strategically the first part is not the way to go. All the same, many agree with Nancy Pelosi when she speaks of a "right" to health insurance, one Congress clearly has the authority to secure in various ways. Bottom line, if it is so much a "human right" or basic matter of fairness, chances are there are ways for Congress to handle the situation. And, the word has a certain cachet that underlines the nature of the issue:
The word "right" is there already. I don't think it's mandatory to use it, but it doesn't fudge the issue since people basically use "right" here to mean a certain protection that state provides as of right, a certain special obligation that is different from good roads or other nice things that are not as essential as those basic things necessary for the general welfare.
[I continued.] Though lots of verbiage is provided, the idea that this all is somehow unconstitutional really is not something I take seriously. Not that it and other stuff (like "death panels" aka helping people make end of life decisions, not -- as the case in Arizona today -- cutting off transplant funding for budgetary reasons) is not repeatedly piled on, like some old fashioned manure dealer. Like Republicans who once claimed they agreed with the Democrats on over 80% of the bill, but like greedy bastards, do all they can to block supermajority rule. Can't allow Congress "to ram" something through ... only has been over a year now, decades in the long run. To block something that will help people while reducing the deficit. Something the other gang too often had been 0 for 2 in promoting.
I added: The interested might find this "property right to medical care" argument intriguing. Similarly, there is an argument that once the state gets involved in providing a benefit, it must do so equally, or it violates the Constitution. See here (also n14).
Anyway, two things. The ruling here is not convincing. The judge's connections to Republican causes has received some concern, but along with cries of it being a "partisan" ruling, I rather not focus on that. Don't think it would take you that far. The ruling does more to state the arguments on both sides than to actually explain why the mandate is unconstitutional. The "activity" bit is lame (is there some "activity" requirement to enumerated powers? how is making health choices an "inactivity") while the regulation not tax bit is at best somewhat weak tea and involves some degree of mind reading.
I do like to focus on the Commerce Clause (and Necessary and Proper) "hook," since that is really the ultimate thing being regulated: a national commercial market. The mandate and tax incentive is a tool. And, it is really a "mandate," since if you are penalized for not doing something, what is it after all? Tax incentives are allowed though. The "penalty" is formulated as a tax policy, income tax policy actually. But, if some one who has no "income" is covered or if it is some other "tax," it's allowed either way. And, the above suggests some more creative ways.
Anyway, second, it is not surprising that the not surprising fact that some judge found a small portion of the law [which he held was severable from all the other provisions and since it was not immediately in place, a mere declaratory judgment was acceptable] received a lot of feedback and coverage. More so than the other judges who upheld the law. He's still wrong though, will most likely be overturned and the above holds true either way.