The online legal resource SCOTUSblog, which follows the U.S. Supreme Court, is holding an online symposium on an issue that figures prominently in the fate of Florida health policy: the constitutionality of the federal health reform law.

Florida, along with more than 20 other states and the National Federation of Independent Business, is challenging the law in federal court, arguing in part that its “mandate” requiring most individuals to either buy obtain insurance coverage or face penalties is unconstitutional. A lower court ruled in the states’ favor, but the Eleventh Circuit Court of Appeals has yet to rule on the case.

At SCOTUSblog, Case Western Reserve University scholar Jonathan H. Adler weighed in this week:

The public debate over the constitutionality of the individual mandate tends to focus on whether it is a permissible exercise of the power to “regulate commerce . . . among the several states.” This is no surprise. The commerce power is the most used and most expansive federal power. Fights over the scope of the Commerce Clause take place on familiar terrain. In the end, however, the constitutionality of the mandate is likely to turn on the scope of a less explored provision, the Necessary and Proper Clause.

Arguing that the Patient Protection and Affordable Care Act raises legitimate constitutional issues, Florida International University law professor Elizabeth Price Foley looks at the Necessary and Proper Clause in light of one of the seminal high court cases that dealt with it, McCulloch v. Maryland, which created a test for whether the clause gives Congress has the power to enact a new law:

With health reform, the “legitimate end” relied upon is the regulation of the health insurance market. But is the mandate a means “plainly adapted” to achieve this end? A mandate to buy insurance is not a method of regulating insurance at all; it is a regulation of individual conduct. The individual mandate does not regulate health insurance in the same way as, for example, a ban on excluding pre-existing conditions or eliminating lifetime coverage limits. The mandate commands, “Thou shalt buy insurance.” This may help sustain the solvency of the health insurance market, especially since the law’s market reforms made health insurance a very expensive and risky thing to underwrite. But the individual mandate itself is not a means of regulating insurance qua insurance.

Combined with McCulloch‘s requirement that the law be “consistent with the letter and spirit of the constitution,” the concerns about the mandate are deepened. Forcing individuals to buy a product, as a supposed means of stabilizing the market for such a product, is dangerous bootstrapping. Under the guise of saving a statutorily destabilized and reconfigured market, the individual mandate attempts to accomplish an object not entrusted to the government – the power to force citizens to buy a private product. This is precisely the type of “pretext” situation Chief Justice Marshall was referring to in McCulloch.

If the Necessary and Proper Clause, annexed to the Commerce Clause, gives the federal government the power to force us to buy whatever it deems useful to bolstering the American economy, there’s no limited government anymore and we should just stop pretending there is.

Foley also explains the important (and not-so-clear-cut) questions raised by Florida’s argument that Medicaid funding can be “coercive,” because withdrawing from what is technically an optional program would be devastating to the states and their poor and disabled residents.

McColloch was also used to support a different set of conclusions by a panel of judges that upheld the law, and Oregon’s attorney general argues in his contribution that the constitutionality of the health reform law is “not a close call.” The whole collection makes for some interesting reading — and shows how complicated the legal issues surrounding the federal health reform law really are.

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