Addressing Due Process Concerns Raised by Obama’s Healthcare Overhaul

Thursday, January 13, 2011

Page 6

IN MY OPINION (Column)

Addressing Due Process Concerns Raised by Obama’s Healthcare Overhaul

By GERT K. HIRSCHBERG

(The writer is a retired trial lawyer, an American Board of Trial Advocates member since 1978 and a former professor of torts at five California law schools. He counts 4,000 of his former students among California’s lawyers and judges. He was presiding referee of the Disciplinary Board, later called the State Bar Court. He is a former member of the State Bar Board of Governors—1980 to 1983—and the Judicial Council of California.)

Our national pastime of predicting the future has just received an unwarranted shot in the arm. Pundits anticipate the Supreme Court’s pronouncement on the legality of the Obama health overhaul articulated in a U.S. District Court for the Northern District of Florida. Two other federal judges have come to opposite conclusions. More decisions are bound to come.

Most Americans dislike the act. Few understand it. Even fewer have read it. It consists of more than 2,000 pages. Almost none have considered that this decision only involves the issue of whether the government can force one to take out health insurance, and then only as of 2014, which is two years after what promises to be a bruising presidential election campaign. Nevertheless, this may turn into an exercise of futility for lack of ripeness.

What then the Supreme Court must decide is whether the people have a right to make their own mistakes. Should we govern by paternalism or laissez-faire? A secondary issue which has not been articulated in the media is the very big issue of severance. Does invalidation affect the entire act, or just this provision requiring insurance coverage by the people?

All the media attention has been directed toward Section 8 of the Constitution, the clause enumerating the powers of Congress. Health care is recognized as a form of interstate commerce. Of course, there is nothing that specifically states Congress can mandate a person to take out insurance. Is a person deprived of the process of law when he or she is required to take out health insurance? In this connection, it must be noted that common law is very loath to impose affirmative duties onto people. That is precisely the reason why previously it had been held that Congress can only regulate an activity that was already occurring.

Around the turn of the last century, New York enacted a state labor law which prohibited bakery employees from working more than 10 hours per day. The bakery owner’s name was Lochner. He was convicted of violating the statute and Lochner v. New York, 198 U.S. 45 (1905), quickly held that this law was not reasonably related to a legitimate purposes of protecting public health. Freedom of contract must prevail. Clean and wholesome bread does not depend on whether a baker works less than 10 hours a day.

Lochner has been cited numerous times, and is perhaps more famous for perpetuating the dissent and fame of Justice Oliver Wendell Holmes than any other decision. Stated he, liberty is not absolute. The Constitution was not intended to embody a particular economic view and is not a document about economic philosophy. Although the legislation must be a fair, reasonable and appropriate exercise of the police power of the state, there must be a direct relationship to the health and welfare of the people. The people have a right to make their own mistakes. The 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics.

Fast-forward to the second decade of the 21st century. Paternalism v. lassiez-faire—what should prevail under today’s conditions? The answer would seem to depend as much on the composition of the Supreme Court as the economic and political conditions of the country. Until then, the crystal ball belongs to no one.