Philip Bobbitt on the Individual Mandate and . . . Bioterrorism

Columbia legal scholar Philip Bobbitt just sent in this fascinating article on the constitutionality of the individual mandate as justified by biosecurity. If that sounds like a bit of a non-sequitur, well, take a look at the piece. Written in the form of an amicus brief--and, just to be clear, it isn't a real amicus brief--it argues that the Commerce Clause is ultimately not necessary for the Supreme Court to uphold the health care law. Bobbitt proposes two alternative bases--the second of which will interest Lawfare readers: "it can be persuasively shown that Congress could rationally have concluded that [the law] was an appropriate method of providing for the 'common Defence … of the United States.' U.S. Const. art. I, § 8, cl. 1." Here are the key passages:

The 1956 Federal Highway Act, by which Congress created the modern interstate highway system, was widely recognized as a statute to provide for the common defense.  United States v. Certain Parcels of Land in Peoria County, Ill., 209 F. Supp. 483, 488 (D.C. Ill. 1962) (“The interstate system intended transcends state and local interest in the interest of a larger national purpose of providing a nationwide system of highways adequate to meet the needs of the national defense and interstate commerce.”); 23 U.S.C.A. § 101(b)(1) (“Congress declares that it is in the national interest to accelerate the construction of Federal-aid highway systems…because many of the highways (or portions of the highways) are inadequate to meet the needs of local and interstate commerce for the national and civil defense.”); Sen. Inhofe, 152 Cong. Rec. S3158  (“Since one of the earliest justifications for the interstate system was to provide for national defense, the highway program is actually a perfect merger of the 2 most important functions of government.”).  The rationale for this was that if the United States were invaded, it would be unable to move artillery, tanks, and troop carriers with sufficient dispatch across the existing highway grid.  As President Eisenhower observed: “The old convoy [the army’s First Transcontinental Motor Convoy of 1919 which had taken two months to travel from DC to San Francisco] had started me thinking about good, two-lane highways, but Germany had made me see the wisdom of broader ribbons across the land.”  See http://‌www.fhwa.dot.gov‌/‌interstate‌/‌brainiacs‌/‌eisenhowerinterstate.htm.  While the prospect of an invasion of the U.S. continental landmass was remote, it was perfectly clear that only a modern, interstate network would suffice to defend the U.S. in the case of such an invasion.           Today’s wars are unlikely to be fought by vast armies moving across fortified terrain: the force structure of the U.S. All Volunteer Force reflects this judgment.  Nevertheless, the United States is in some ways more vulnerable than it was in the 1950s.  Partly this is due to the steady advance of biotechnology that makes biotoxins and viruses cheaper to create and easier to weaponize, and brings their deployment within the technical capabilities of many thousands of persons.  Various technical complexities, however, mean that we have, for a while, a period in which it is unlikely that mass casualties will result from a biological attack.  This period of respite will shift as the techniques of microbiological recombination become more widespread.  It will be possible for well informed persons to alter the molecular structure of viruses in nature, producing a lethal infectious disease that, once exposed to human beings, can spread by contagion. . . . The consequence of these developments is that the healthcare of all persons living in America is bound together: the protection of every American is no stronger than the weakest protection of any American.  Yet the most frequent reason cited by persons who do not present themselves to hospitals for treatment is a lack of medical insurance.  Without such presentment, medical authorities are unable to accumulate the data necessary to warn of a biological attack in the timeliest way.  In the case of the anthrax attacks of 2001, the determining factor whether the victims lived or died was whether the treating physicians recognized the cause of infection.  Unalerted, many did not; their patients died. A person who is deterred from seeking medical care because he does not have health insurance unwittingly jeopardizes other people; in the future, this jeopardy can have mass consequences.  See, e.g., Shane K. Green, Bioterrorism and Health Care Reform: No Preparedness Without Access, Am. Med. Ass’n J. of Ethics (May 2004), available at http://virtualmentor.ama-assn.org/2004/05/pfor2-0405.html; Matthew K. Wynia & Lawrence Gostin, The Bioterrorist Threat and Access to Health Care, 296 Science 1613 (May 21, 2002); APHA’s Prescription for Pandemic Flu at 11 (Feb. 2007).  See Philip Bobbitt, Terror and Consent: The Wars for the Twenty-first Century 403.  Congress has determined that it is necessary to create a national network of disease reporting, an intangible successor to the national Highway network. To deny Congress the power to implement an essential part of this strategy--a strategy to preclude the consequences of  biological attacks through reporting of presentments--would jeopardize such a monitoring and reporting system.