法律英语：43 Is the Health Care Law Unconstitutional?

by Adam Freedman

Today’s topic: Is the health care reform law constitutional?

At the risk of stirring up controversy 2, I can’t resist dipping a toe into the current debate over the new health care bill.  One of my readers-Mary-writes in to ask whether the government can legally require citizens to purchase health insurance. Also, according to a highly-unscientific survey I’ve been running on my Facebook page, at least a few of you are curious about whether the health care law is unconstitutional.

Is the Health Care Bill Unconstitutional?

The short answer is: we don’t know yet--because courts have never had to consider anything exactly like the federal health care mandate 3, and the court challenges are just getting underway. In this article, I’ll review some of the major arguments pro 4 and con 1.

The Patient Protection and Affordable 5 Care Act

On March 23, 2010, President Obama signed the Patient Protection and Affordable Care Act--otherwise known as “health care reform” or the “health care law” or sometimes even as “ObamaCare.” Before the ink was even dry, a variety of politicians and advocacy groups started filing lawsuits 6 challenging the constitutionality of the law.

Will the Supreme 7 Court Uphold the Health Care Law?

It appears inevitable 8 that at least one of these challenges will reach the Supreme Court sooner or later. If you’re trying to handicap the likelihood of the Court overturning the law, it has to be noted 9 that, historically, the Court defers 10 to Congress unless it finds a law to be clearly unconstitutional. That said, the Court has overturned quite a few laws over the years, and there are serious arguments being made on both sides of the health care issue.

Why Might the Health Care Law Be Unconstitutional?

The most prominent lawsuit--filed by thirteen state attorneys general--argues that the legislation is simply beyond Congress’s constitutional powers. That argument focuses on the “individual mandate,” that is, the requirement that every US citizen and legal resident purchase health insurance or face a tax penalty. That penalty starts at $95 in 2014, ramping 11 up to $695 in 2016.

Article One of the Constitution delegates certain specific powers to Congress; these are sometimes referred to as the “enumerated 12 powers.” Also, the Tenth Amendment 13 to the Constitution states that those powers not delegated to Congress are reserved to the States and the People. The attorneys general point out that health care isn’t one of the enumerated powers of Congress and, therefore, the power to regulate health care is reserved to the states under the Tenth Amendment.

Why Might the Health Care Law Be Constitutional?

The counter-argument is that the health care bill fits within Congress’s power to regulate “Commerce . . . among the several States” (Article I). That is known as Congress’s “commerce power,” and the Supreme Court has interpreted that power very broadly since the late 1930s. Generally speaking, the Court has upheld federal regulations as long as the activity being regulated will, in the aggregate 14, have a substantial impact on interstate commerce.

In the famous case of Wickard v. Filburn (1942), the Supreme Court upheld the power of Congress to regulate an individual farmer’s cultivation 15 of wheat on his own farm for consumption by his own family. If everyone engaged in such activity, the Court reasoned, it would have a substantial impact on interstate sales of wheat. If Congress can regulate something as small as that--one may ask--can’t they regulate something as big as health care?

Other Arguments Against Health Care

But wait.  Opponents of the law still have some arguments up their collective sleeve.  First, they point out that the market in question--the market for health insurance--isn’t an interstate market. There are barriers to purchasing health insurance across state lines. Therefore, even if health insurance qualifies as “commerce,” the Court might hold that it isn’t commerce “among the several States,” as the Constitution requires.

Secondly 16, the individual mandate is a relatively 17 novel form of regulation.  Strictly 18 speaking, it doesn’t regulate any form of economic activity; rather, it regulates a form of inactivity--the failure of certain people to buy health insurance. Opponents of the law claim that there is no precedent 19 for the federal government mandating 20 citizens to engage in a particular form of economic activity.

What About the Requirement for Car Insurance as a Mandate?

Supporters of the law point to the requirement that drivers purchase auto 21 insurance as an example of an individual mandate. It’s a fair point, but it doesn’t really address the constitutional issue. That’s because car insurance laws are enacted 22 by state legislatures.  Unlike the US Congress, state legislatures are not subject to the “enumerated powers” doctrine 23 in the US Constitution.

If you’ve been waiting for me to tell you which side is right, I’m sorry to disappoint you, but that’s way above my paygrade! Armies of lawyers will be filing briefs and motions for months – possibly years – to come and eventually, the High Court is sure to weigh in.  Stay tuned 24!

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