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.