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Is there a constitutional basis for overturning health-care reform?

BY DI EDITORIAL STAFF | APRIL 01, 2010 7:30 AM

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YES

By Jonathan Groves
jonathan-groves@uiowa.edu

Despite the Democrats’ best wishes, attorney generals from at least 14 states have filed a lawsuit challenging various provisions of the recently signed health-care-reform bill. More states are apt to join in suing the federal government as well.

So what kind of beef do states have with “Obamacare”?

The complaints come in two meaty flavors: forcing states to take on additional financial burden and forcing individuals to enter into a contract with another private company, said Randy Barnett, a law professor at the Georgetown University.

“The law imposes steep economic burdens on the states and compels them to set up insurance exchanges upon pain of losing all their Medicaid funding,” said Barnett, who has written several books on constitutional law and appeared in various news outlets.

Furthermore, Barnett said the reason the health-care bill was originally filled with deals like the notorious Cornhusker Kickback was because politicians were trying to cover some of the cost of the bill for their states.

Attorney generals from states that did not receive special breaks — now including Nebraska, because the Cornhusker Kickback was removed in the final version — filed the lawsuit to protect their state governments from unsustainable spending increases.

I’ll give President Obama some credit. Foisting spending upon the states is a great way to make other politicians take criticism for wrecking government finances instead of himself and Congressional Democrats.

The attorney generals’ suit also tackles the issue of individual liberty when it comes to buying a product — in this case a government-regulated health-care plan.

Under the law, the federal government mandates that you buy health insurance, which Barnett said is an unprecedented exertion of power on the part of Congress. In the past, the federal government has never mandated that a private individual enter into a transaction with another private company.

Forcing people into a transaction violates the Constitution’s Commerce Clause, Barnett said.

Supporters of health-care reform criticize the basis of the attorney generals’ suits and say the court system does not have the mettle to overturn sweeping legislation. Yet the Supreme Court overturned the Gun-Free School Zones Act in 1995 and the Violence Against Women Act in 2000, both for violation of the Commerce Clause, said David Rivkin, an attorney who is assisting the attorney generals with their lawsuit.

“When the Supreme Court overturned those two acts, they argued the Commerce Clause has to have limits,” Rivkin said. “If the courts confirmed this legislation, there is no limiting principle to this mandate, and the government can make you purchase any good or service.”

The looming court battle over “Obamacare” will come to define the relationship between the individual and the state — something that has not received much attention, Rivkin said.

In the end, it’s not really about health care, but doing what liberals accused President George W. Bush of doing for eight years — shredding the Constitution. Personally, I like the Constitution the way it is. And I hope the Supreme Court chooses to overturn a piece of legislation that would reorder how individuals and states interact with the federal government.

 

NO

By Michael Dale-Stein
michael-dale-stein@uiowa.edu

With a swipe of ballpoint upon parchment last week, President Barack Obama solidified compulsory health insurance as a vital component of overhauling America’s demonized medical industry. Now, attorney generals in at least 14 states are challenging the constitutionality of the legislation. Such fallacious attacks represent a last-ditch effort by conservatives to derail reform legislation.

Among several arguments, opponents of the bill claim that Congress does not have the power to exact monetary punishment against those without insurance.

Those who believe compulsory health insurance is unconstitutional rely upon a two-part argument: Congress lacks the federal power to mandate insurance and, furthermore, enacting legislation to do so is a violation of individual rights. That argument is simply unsubstantiated and hollow.

According to a recent article on Seton Hall University’s “Health Reform Watch” blog written by Mark Hall, a professor of law and public health at Wake Forest University, mandating health insurance falls under a federal right to tax income. Hall wrote that Congress’ power to regulate the economy falls under the Constitution’s Commerce Clause. However, whether mandating insurance is tantamount to regulation — the power held by Congress in the clause’s definition — is in dispute.

Randall Bezanson, a professor in the University of Iowa College of Law, said he does not think mandating health insurance is unconstitutional. He said regulation is a broad term that includes mandates if they’re necessary and part of a general regulatory scheme.

“Commerce regulation has included prohibition mandates and all sorts of things for years,” Bezanson said in an interview. Laws mandate people in many different ways, he said, including seat belts and compulsory education.

Bezanson said he does not see health-care reform as affecting individual or states’ rights. However, he said it’s possible that some provision in the legislation could be challenged on the basis of individual rights.

Challenges to the new law are very real. And it’s possible that the litigation surrounding health-care reform could reach the highest court in the land. But Bezanson said the Supreme Court, from its beginning, has made clear that the Commerce Clause not only refers to regulating but also prohibiting and mandating.

“I don’t see the Supreme Court changing their mind in a radical way,” he said.

If the Supreme Court ruled that compulsory health insurance is outside the scope of the Commerce Clause, it would deal a sickening blow to millions of uninsured Americans. Still, I’m assured that any suit arguing against the constitutionality of the reform law will be shot down. Fortunately, legal precedence is on my side.


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