Constitution Daily

Smart conversation from the National Constitution Center

6 arguments to consider as Congress wrangles over health care

January 21, 2011 by Dr. Steve Frank


With newly empowered congressional Republicans voting on Wednesday to repeal President Obama’s signature health care reform law, the debate that divided the nation for more than a year before the legislation was enacted last March and continued to rage through the midterm elections has entered a new phase.

While the repeal measure will not pass the Democratic-controlled Senate, no one expects the issue to fade away anytime soon. In addition to congressional oversight hearings and measures to cut off funding that will keep the issue alive on Capitol Hill through the 2012 presidential election, legal challenges initiated by the states are working their way through the federal courts.

The legal challenges focus on whether Congress may compel everyone to buy health insurance or pay a penalty, and whether the federal government may impose new public-insurance requirements on the states.

Is health care reform constitutional? Here are six arguments to consider as Congress continues to wrangle over federal control of health care and the issue makes its way to the U.S. Supreme Court:

  • YES: Article I of the Constitution gives Congress the power to regulate any activity that affects interstate commerce, and having health insurance (or not having it) clearly affects the national economy.
  • NO: Requiring all Americans to buy health insurance goes far beyond any law Congress has previously enacted using its power to regulate commerce.
  • YES: Requiring people to buy health insurance or pay a penalty is a mandate Congress can impose under its authority to levy taxes for the general welfare.
  • NO: The individual mandate is not a tax. It compels people to enter into a private economic transaction simply because lawmakers consider it to be in the public interest.
  • YES: Requiring states to expand their Medicaid insurance programs fro the poor, a key health care reform provision, is legal because states can opt out of the federally subsidized program if they choose to.
  • NO: The 10th Amendment prevents the federal government from forcing states to expand their Medicaid insurance programs for the poor.

The latest public opinion polling shows the country closely divided. A Quinnipiac University national poll released Tuesday found that Americans favor repeal by 48 to 43 percent margin. A CNN/Opinion Research Corporation survey, also released on Tuesday found that half of all Americans favor repeal.


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