Constitution Daily

Smart conversation from the National Constitution Center

The clause that could kill the Health Care Act

June 6, 2012 by NCC Staff


On Wednesday at the National Constitution Center, a cast of top legal experts will debate the one issue that could stop President Obama’s Affordable Care Act in its tracks: the Commerce Clause.

The two featured speakers, Jack Balkin of Yale Law and Randy Barnett of Georgetown Law, have been widely published on the Commerce Clause and its effect on health-care laws. The other expert guests, Stephanos Bibas, University of Pennsylvania Law; Jamal Greene, Columbia Law (and former clerk for Justice John Paul Stevens); Ilya Shapiro, Cato Institute; and Neil Siegel, Duke University School of Law, have also been front and center in the conversation about the impact of this pivotal ruling.

The court’s interpretation of the clause will center on the ability of Congress to force consumers to buy a product or the need for Congress to regulate a big portion of the national economy.

On his blog Balkinization and in a recent article in The Atlantic, Jack Balkin says it was the influence of the Republican party that pushed the validity of the individual mandate–the ACA’s requirement that everyone buys health insurance–in front of the court.

‘Three years ago, the idea that the Act's mandate to purchase health insurance might be unconstitutional was, in the view of most legal professionals and academics, simply crazy,” Balkin says in the Atlantic.

“The single most important factor in making the mandate opponents' constitutional claims plausible was strong support by the Republican Party, including its politicians, its affiliated lawyers, and its affiliated media,” he states in his essay.

Randy Barnett was certainly at the front line of thinkers who always thought the individual mandate wouldn’t stand up to a legal review.

In March 2012, The New York Times published a retrospective on Barnett’s fight to get respect for the argument that the individual mandate was on very shaky ground.

“Professor Barnett … was not the first to raise the constitutional critique of the health law, but more than any other legal academic, he is associated with it,” said The Times.

In a recent blog post on The Volokh Conspiracy, Barnett makes the basic argument against the individual mandate that was echoed in the Supreme Court in March by Associate Justice Anthony Kennedy and Chief Justice John Roberts.

“If the Supreme Court invalidates the individual insurance mandate, it need not call into question any other law that has ever been passed in the history of the United States.  Why?  Because the Congress has never before exercised its Commerce Power to impose a requirement on the American people to enter into a contract with a private company, upon pain of a penalty payable to the IRS,” Barnett said.

But what happens if the court rejects just the individual mandate section of the Affordable Care Act? Or the entire Act?

That remains to be seen, since the court could uphold the part of the ACA that bars insurance companies from declining customers with preexisting conditions.

Industry observers question how insurance companies can stay in business when their costs could climb without the counterbalance of new premiums brought to the table from the individual mandate.

But Supreme Court observers have also indicated the nine justices are very aware of the financial ramifications of their decision.

Upcoming Event

On June 6, Jack Balkin of Yale and Randy Barnett of Georgetown will be live at the National Constitution Center to explore the commerce clause and the upcoming Supreme Court decision on health care. Click here for event details. Moderator: John Hockenberry.

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