Constitution Daily

Smart conversation from the National Constitution Center

6 healthcare constitutional arguments to watch

November 12, 2010 by Dr. Steve Frank


Here at the National Constitution Center we believe firmly that politics is a participatory sport, not a spectacle to sit back and watch. But sometimes to participate, it’s useful to have a scorecard: It can help you keep your eye on the ball.

With newly empowered congressional Republicans vowing 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 which continued to rage through the midterm elections, shows no signs of abating.

But for all the sound and fury emanating from Washington, it would be a mistake to think that Congress is the only, or even the most consequential place, where the future of health care reform will take shape. Resurgent Republicans in the House have little chance of winning full repeal. A wholesale rollback could not pass the Senate, where Democrats retain a slim majority, much less survive President Obama’s veto pen.

Revisions to the law, including tort reform to limit medical malpractice claims and new rules allowing people to shop for health insurance across state lines, may advance in Congress. But the game to watch is also being played beyond the Beltway, in federal courts and in state legislatures across the country, which are charged with implementing some of the new law’s most important provisions. And that’s where a scorecard can come in handy.

The constitutional issues surrounding federal control of health care 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 is a constitutional scorecard, with six arguments to look for as lawsuits brought by state lawmakers make their 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.


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