Thursday, September 29, 2011

"Obamacare": Is it constitutional?

Debaters at the Charlotte School of Law last week didn't scream or shout like pundits on cable TV. But they did disagree over whether the Patient Protection and Affordable Care Act, approved by Congress last year, is constitutional.

The U.S. Supreme Court is expected to take up the question in the next few months.
Charlotte law students got a preview of the arguments. Elizabeth Wydra, general counsel for the Constitutional Accountability Center, took the affirmative, and Nelson Lund, professor of constitutional law at George Mason University, argued for the negative.

The structured debate gave each speaker 10 minutes, followed by limited time for rebuttal and questions. There were no hecklers in the audience, no U.S. flags hanging in the background, and no cheap shots. When Lund used the term "Obamacare," a pejorative used by opponents of the law, he took time to explain that even President Obama has recently "endorsed" the term.

Debate centered on the "individual mandate," the law's requirement that every citizen buy health insurance or pay a penalty, and whether it is allowed by the Commerce Clause of the Constitution (Article 1, Section 8), which gives Congress the right to make laws regulating commerce among the states.

Wydra said the mandate is constitutional because it "regulates the means by which people pay for health-care services" across the country. U.S. hospitals are required to treat people who show up at the ER even if they don't have insurance.
"They will run up a bill that they can't afford to pay," she said. "But someone will pay it" -- namely other patients with private insurance and other taxpayers.

Uninsured people may seek care in hospitals outside their home states, she said. The decision to "opt out" of buying insurance "profoundly affects the nation as a whole" and, thus, falls within the Commerce Clause, she said.

Lund countered that the Commerce Clause pertains to economic activity. "Failing to purchase health insurance is not an economic activity. It's not an activity at all."

"Never before has Congress tried to use this power to force Americans to buy things they don't want...It's a completely novel idea."

Instead of relying on the Commerce Clause, Lund said Congress could have used its taxing powers to raise money to pay for insurance coverage for all citizens. But President Obama had promised not to raise taxes on middle-class Americans. "This is a stealth tax operating in the guise of a regulation of commerce," Lund said. "Just because Congress can do something under one of its powers is not enough reason to expand another power."

Wydra responded that the mandate is allowed under the Commerce Clause because Congress is allowed to pass laws that are "necessary and proper" to carry out its enumerated powers. Without the mandate, and without large pools of healthy people who are less expensive to insure, insurance companies wouldn't be able to afford to extend coverage to all citizens, including those with pre-existing medical conditions. The mandate, she said, is part of a larger "scheme" to overhaul health care. "No one can possibly argue that health services reform is not an appropriate commercial regulation."

Lund countered that if Congress can require citizens to buy health insurance, it could also require them to buy broccoli. "It's not now a part of a comprehensive regulatory scheme, but it could easily become one."

No winner was declared. And neither speaker would predict what the Supreme Court will do. We'll all just have to wait.


Wiley Coyote said...

There is no logical reason to force people to buy insurance and to use the fact uninsured get care and "someone has to pay for it" as an excuse, is insulting.

We've had indigent care for a long time before Obamacare so to somehow make this a new issue" is ridiculous.

Anonymous said...

I don't know why the right wing people call it Obamacare. It should be called Reidcare. The bill that became law does not even remotely resemble the bill that President Obama requested, nor does it resemble the bill that was originally passed by the house.

If anyone is to blame for it, it is the Republicans. If they had not been unanimously opposed to ANY health care relief being passed, this bill never would have passed. It passed only because the Republicans had just enough power to prevent any changes being made to it to reconcile the two bills.

Anonymous said...

Based on the arguments here, SCOTUS should slap this one down 9-0. Wydra's argument that this falls under the Elastic Clause is sooo weak... if the individual mandate is "necessary" how were we able to live without it for 250 years? The fact that someone has to "pay for it" is already reflected in fees and premiums and therefore renders this over reach of government unnecessary.

And if this falls under "proper", why shouldn't every healthful activity be deemed proper? It's "proper" I watch my diet and exercise. Is the government going to force that?

Anonymous said...

To Annon 207 --- perhaps the government should (figure out a way to) force all of its citizens to watch their diet and exercise. We might all pay less in health insurance....down the road -- as a lot of the insurance might not be necessary, since watching diet and exercising will prevent certain diseases from even occurring (that are connected to being overweight). Certainly recovery time from some illnesses are cut in half when the patient has been exercising and watching diet. And no that does not mean the gov't should be required to give us all gym memberships. But that could be a good mandate (is it a realistic mandate? Nah...probably not.)

Anonymous said...

It's just flat out wrong to force a person to buy a product against their will and if they don't you fine them. Call it what you want, it doesn't need fancy words, it's just wrong and should be illegal. What kind of society does this?

Wiley Coyote said...

Anon 2:57...

How a person chooses to live, what to eat and whether to buy insurance, is NOT the business of the government.

blockhead said...

Karen, you've done it again. "Obamacare" is a pejorative, derisive term coined by opponents and the likes of Rush Limbaugh, and should never be used by a purportedly objective journalist. Beyond that, the fact is, many of the posters here either don't understand the issue, or are such partisans they don't care. The one who says it is "just flat wrong" to make someone buy something they don't want almost certainly pays an uninsured motorist fee to insure his car. He conveniently overlooks that, when he becomes sick or injured, someone will pay for his care. And I'd almost bet he doesn't have $100,000 to $1 million stashed under his pillow for a major surgery or protracted illness. So, it's going to be those of us who are responsible enough to buy insurance who have to pay for him - or the taxpayers.We need full government health-care, not private insurance which contributes nothing to health-care (even been to Cigna or Blue Cross when you had a sore throat?) but inserts itself between patient and provider and skims off billions a year for doing nothing.

Brew Ha Ha said...

Blockhead -

Your nickname is well earned.

Comparing the individual mandate to car insurance requirements is laughable.

Nobody forces you to own or drive a car. The Obamacare mandate reaches into the living room of every American and forces him/her to buy in.

If you don't want taxpayers to be left with the bill for the uninsured then leave the issue to the states rather than the feds. You can then move to a state that provides a level of care to the uninsured you're happy with as can we all.

Anonymous said...

Thanks Brew Ha Ha. I would have responded but you took care of it. I knew the 'Demwits' would run quickly to the auto insurance counter argument without thinking it through. My post was in a simplistic form, to the bare bone of the matter and yet, the knees started jerking such that Blockhead fell fight off his stool typing.

Wiley Coyote said...


Obama uttered Obamacare for the first time:

March 2010

OBAMA: An interesting thing happened a couple of weeks ago, and that is a report came out that for the first time, it turns out that more Americans are now getting their health care coverage from government than those who are getting it from the private sector. And you know what? That’s without a bill from the Democrats or from President Obama. It has nothing to do with, quote-unquote, “Obamacare.”

Your comment is nothing more than Democrat talking points, where even journalists have banned the term from their blogs.

Democrats try to neutralize the term by insisting it's the same as saying the, let me get my quotation marks read - the "N" word.


Larry said...

McClatchy is down to 1.26 today.

And the market fell again 200 points.

So grab that deck chair Observer for some reason they just are not in the same world as the rest of us.

Anonymous said...

Don't people see what government does to the market? Everything government gets involved in i.e. Healthcare, Education, Farm subsidies it screws up. It may be get you votes to spend other people's money, but it does absolutely nothing to increase our standard of living. First off the real reason Healthcare is going up is the government is printing funny money and too much regulation.

Anonymous said...

The government needs to remove itself from this issue. They do nothing right on a large scale. I can't even go to the DMV and get a simple drivers license renewal in an expeditious manner....why would I want their help managing my health issues?

Too much government! Stay out of the schools, healthcare, and private homes...

Steve said...

I don't understand you socialists who believe that the Constitution should force me to pay for the health care of people who are just to sorry to buy their own insurance. Talk about forcing somebody to buy something they don't want!

I have no problem with our paying for care for indigent people, but I have no sympathy for those who could afford insurance, but choose to gamble with my money instead. If someone wishes to opt out of the health insurance system and carries with them a notarized card that refuses all medical treatment for which they can't or won't pay, then fine.

Anonymous said...

The only thing the government is good for is spending money the country does not have. As already posted, everything they touch is a snafu. The Energy Department, Social Security, etc are prime examples. The problem is we are paying for medical treatment for "non-citizens", but our government will not address that issue.

Anonymous said...

For all of those who argue against socialized medicine, what is your response to the fact that in our current system taxpayers and consumers are footing the bill for those without insurance? That is socialism at work. It is spreading the wealth as you like to say. It is the haves paying for the have nots.

Opponents like to say that it is unlawful to make a citizen buy a product. But we are already doing that in our current system. Citizens are forced to pay for the health care of the uninsured in the form of higher insurance premiums and outrageous hospital/doctor bills.

And for the broccoli example referenced in the article, it is perfectly normal for a person to go an entire lifetime without eating broccoli. But it is completely unreasonable to expect a person to go an entire lifetime without consuming health care in some form. Most of us are born in a hospital (which cost money) and many of us die in hospitals (which costs money). Even the poorest of the poor will seek health care at some point in their life.

If people think it is unconstitutional to make citizens buy health insurance, I can respect that. There is a degree of subjectivity here to the language in the Constitution. But I find it totally unreasonable for people to reject Obamacare, and offer no plausible alternative to solving this fundamental problem.

I don't find merit in condemning the mandate if you don't have a better idea. And I haven't seen any offered on this thread.

Anonymous said...

Mandating that everyone must buy insurance is a necessary component of mandating that the insurance companies must SELL you insurance.

If insurance providers, who are still private, for profit, businesses, are not allowed to refuse you coverage then people would be able to just buy insurance on the way to the hospital then drop it on the way back out.

Making sure that everyone is ABLE to buy insurance and requiring them to buy insurance must be linked.