Tuesday, March 27, 2012

Health care law, constitutional or not

Now that the Supreme Court is hearing arguments on President Obama's health-care law, it seemed appropriate to review some of the debating points made at Charlotte School of Law last September.

Elizabeth Wydra, general counsel for the Constitutional Accountability Center, argued that the Patient Protection and Affordable Care Act, approved by Congress last year, is constitutional.
Nelson Lund, professor of constitutional law at George Mason University, argued the opposite.

Debate centered, of course, 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're all waiting for that decision.

11 comments:

Anonymous said...

Lund's arguments are very weak.

The fact that hospitals have to provide treatment to anyone who shows up is the crux of the issue. I'm sick of paying extra to cover those without insurance. Its time to have a system that covers everyone.

The state of NC requires all car owners to insure them, yet I've never heard a peep from anyone complaining about that representing a trampling of their rights.

Anonymous said...

You aren't required to have a car therefore buying car insurance involves a choice to have a car. This law gives you no choice. The car analogy is interesting though. Congress may decide next that everyone who has a car over 10 years old is required to purchase a Volt in the "public interest". What's to stop them?

Anonymous said...

"But President Obama had promised not to raise taxes on middle-class Americans."

Our taxes aren't going up, but my insurance premiums sure as hell are!!!

Anonymous said...

Everyone will require food at some point in their lifetime. If they do not purchase food on their own, the rest of society must provide it (we currently provide it in the form of food stamps, unemployment ins., hospital visits etc.).

In order to make food cheaper for everyone, we must require all people to pay a monthly fee for food for their family. If you opt out, you will be penalized via the IRS. This way everyone will always have access to food...forever. Hunger problem solved. Next up...shelter.

Anonymous said...

If we are going to pay for health care to anyone who shows up at a hospital, ABSOLUTELY everyone should pay something!!!! I'm tired, like most, of payhing for eveyone who has no coverage. What terrible thing happens if you don't have it? I used to believe it would be catastrophic - not true, people get the help and life goes on. One individual who was injured, required 3 months of rehab, 4 surgeries, therapy at home, retraining,.... all he had to do was liquidate a $10,000 IRA! His home, business,... nothing! Everyone needs to contribute NOW!!!

Anonymous said...

To ANON 11:08 -

In Obamacare that same individual would be paying a yearly "fee" or penalty to the IRS of about $2K or $3K. Same injury occurs - who pays for the healthcare?

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J said...

In order for the Supreme Court to find the individual mandate Constitutional, they're going to have to invent something out of thin air, similar to the Warren court's invention of "Constitutional right to privacy" in '73. Hopefully this court will not do such a dangerous thing.

That's right; I said "dangerous." That's exactly what we are facing. If the court upholds this law entirely, the legislative branch of the Federal government will have unlimited power. There is nothing more dangerous than one piece of government having complete and utter control over the lives of all the citizens.

And, just for the "progressives" who missed the memo - there is not one letter in this 2,700-page law that is intended to improve health care. Every letter in all 2,700 pages was written with the express purpose of forcing every American citizen to be 100% dependent upon the Federal Government for health care of any kind, from a heart transplant to a Band-Aid. This is all about control. It is NOT about better health care.

I remain in daily prayer that the Supreme Court realizes this and strikes down the entire law.

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Anonymous said...

You people are all crazy no one is making me buy coverage period if i get sick and die that's my buisness not the government I'm not cattle I'm so sick of how stupid people r trust doctors is a big mistake and you can't have my kidneys or corneas screw that if its over for you tough silly human slaves they poison you and you keep trusting them idiots