Watch What You Say

I am quoted in this week's Newsweek, which has got people e-mailing me about it. It's got me remembering that press quotations can be misleading.

Newsweek's reporter initially contacted me about some bills working their way through the Virginia legislature that would say that no one in the state would be required to buy health insurance. It had previously been reported that these bills, if passed, would "make it illegal to require people to buy health insurance." Federalism is one of my areas of expertise, so he asked me whether a state could prevent Congress from requiring people in that state to buy health insurance. I pointed out that (a) that's not even what the bills say, and (b) of course if they did say that, they would be pre-empted by a federal law that mandated health insurance, if Congress passed one. So any state that passed a bill that purported to protect people in that state from a federal mandate requiring health insurance coverage would just be engaged in meaningless grandstanding, as politicians so often are. (The chairman of the Federation of Virginia Tea Party Patriots said that the bill was a focus of major lobbying by Tea Party volunteers. It says a lot about the Tea Party that one of their major priorities is a bill that wouldn't actually do anything.)

He also asked me more generally about the health care bill working its way through Congress, and whether it would be constitutional for Congress to require people to buy health insurance. I spent a good ten or fifteen minutes explaining that while of course we don't know yet what the final bill, if any, will actually say, it looks to me like it would be constitutional.

I pointed out that (a) health care is commerce, in fact 1/7 of our national economy, and Congress's power to regulate commerce is very broad, and (b) as I understand it, the bill doesn't actually require people to buy health insurance; it just imposes a tax penalty on people who don't, and Congress is constantly using the tax system to impose incentives or disincentives on various behaviors, so that would be commonplace and would probably be OK. I also referred him to the analysis by my old professor Akhil Amar, which supports the bill's constitutionality. And I observed that lots of governments require people to buy things, including insurance (e.g., auto insurance), so that wouldn't be unheard of either.

I even explained why Senator Orrin Hatch's analysis claiming the bill would be unconstitutional is wrong. Hatch doesn't like the fact that the bill provides that if states don't set up "health insurance exchanges," the federal government will do it for them. But this makes the plan constitutionally better, not worse, because this way the states aren't required to set up health insurance exchanges; they have the option to do so or not.

Having said all that, I did say that the federal government would be doing something new, and that whenever that happens, people challenge it. Given that, as far as I know, the federal government has never done this before, I suggested that a constitutional attack on a federal mandate to buy health insurance would not be trivial or frivolous, but that, in my opinion, it would fail.

So out of the whole 20 or 30 minute interview, what got quoted? Naturally, the quote is:

"The federal government would be doing something new," says Jonathan Siegel, a constitutional-law scholar at George Washington University. "It's not a trivial claim" for the states to make. "It's not frivolous."

There you are. I am accurately quoted, and I can't put any fault on Newsweek, but it looks like I am attacking health care legislation, when I spent 99% of the interview defending it.

So watch what you say when you talk to the media. They only have space to quote one thought from you, and you never know which one it will be.