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Erwin Chemerinsky

November 9, 2009
Health Care Mandates Are Constitutionally Sound
Guest Post
By Helen Wong, former president of the ACS student chapter at Georgetown Law

As the debate over health care reform continues, the question of whether an individual mandate to purchase health insurance is constitutional has been termed "the elephant in the room" by conservative pundits across the country. If so, this is definitely an elephant that has gotten significant attention. Bush administration attorneys, David Rivkin and Lee Casey, wrote not one, but two editorials in The Washington Post and The Wall Street Journal arguing that a health insurance mandate would exceed the power granted to Congress by the Constitution.

Opponents of the health care reform point to two main arguments for why such a mandate would be unconstitutional. First, they argue that Congress lacks constitutional authority to compel people to purchase health insurance. Second, they maintain that Congress lacks the power to levy a tax against those who do not purchase health insurance or that such a tax would be considered an "arbitrary and capricious taking under the Fifth Amendment."

But the opponents are wrong on both counts. Congress does have authority to pass a health insurance mandate under the Commerce Clause enumerated under Article 1, Section 8, of the Constitution. Since the 1930s, the Supreme Court has interpreted the Commerce Clause to mean that Congress has the authority to regulate activities that have a substantial effect on interstate commerce. "Substantial effect" can be found on individual decisions that, in the aggregate, would affect interstate commerce. In Wickard v. Filburn, Filburn had violated wheat production quotas because he was growing extra wheat for personal consumption. The Court found that his actions, though minimal, would affect interstate commerce because it would reduce the amount of wheat he would need to purchase on the open market. More recently in Gonzales v. Raich, the Supreme Court found that "Congress could use its commerce clause authority to prohibit individuals from cultivating and possessing small amounts of marijuana for personal medicinal use because marijuana is bought and sold in interstate commerce."

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November 3, 2009
Sens. Push Healthcare Measure To Support Religious Treatments
"A little-noticed" measure in the healthcare reform bill would require insurers to consider covering Christian Science prayer treatment as medical expenses, the Los Angeles Times reports. The newspaper says the provision has the backing of Sens. Orrin Hatch and John Kerry, as well as lobbyists for the Christian Science Church. Phil Davis, a church official, tells the Times, "We are making the case for this, believing there is a connection between healthcare and spirituality. We think this is an important aspect of the solution, when you are talking about not only keeping the cost down, but finding effective healthcare."
But the newspaper notes supporters of the First Amendment principle of the separation of church and state are concerned that the provision would amount to federal funding of religious services.

Erwin Chemerinsky, a constitutional law expert and dean of the UC Irvine School of Law, told the newspaper, "I think when Congress mandates that health companies provide coverage for prayer, it has the effect of the government advancing religion."

Sen. Hatch said he was pushing the provision because "everyone, regardless of religious affiliation, should have access to healthcare."

A pediatrician and medical ethicist at the University of Wisconsin said the provision, however, should be dumped because it would pay for services that are not medical.
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Religion clauses, Constitutional Interpretation and Change, First Amendment, Christian Science Church, Erwin Chemerinsky, Healthcare Reform, Sen. Hatch, Sen. Kerry
October 23, 2009
Constitutionality of Health Care Reform is Sound, Says Prof. Chemerinsky
The claims pushed by opponents of health care reform that constitutional rights would be shredded if individuals are required to obtain health insurance are beyond wobbly says constitutional law expert and professor Erwin Chemerinsky. "There is much to argue about in the debate over health care reform, but constitutionality is not among the hard questions to consider," writes Chemerinsky in a column for Politico.
Chemerinsky, dean and professor of law at the University of California, Irvine School of Law, rebuts claims that Congress' health care reform proposals that include a mandate for people to buy health insurance are constitutionally suspect.

Congress, Chemerinsky maintains, has constitutional authority, such as its powers to regulate commerce and to tax and spend that allow it to require people to buy health insurance.

Chemerinsky writes:

Under an unbroken line of precedents stretching back 70 years, Congress has the power to regulate activities that, taken cumulatively, have a substantial effect on interstate commerce. People not purchasing health insurance unquestionably has this effect.

There is a substantial likelihood that everyone will need medical care at some point. A person with a communicable disease will be treated whether or not he or she is insured. A person in an automobile accident will be rushed to the hospital for treatment, whether or not he or she insured. Congress would simply be requiring everyone to be insured to cover their potential costs to the system.

Regarding Congress' constitutional power to tax and spend Chemerinksy notes:

Congress can require the purchase of health insurance and then tax those who do not do so in order to pay their costs to the system. This is similar to Social Security taxes, which everyone pays to cover the costs of the Social Security system. Since the 1930s, the Supreme Court has accorded Congress broad powers to tax and spend for the general welfare and has left it to Congress to determine this.

Chemerinsky's entire article is available here. The professor also addressed the constitutionality of health care reform in an earlier column for the Los Angeles Times.

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October 6, 2009
Prof. Chemerinsky Explores Constitutionality of Healthcare Reform Efforts
There may be plenty to debate over the federal government's efforts to reform the nation's healthcare system, but whether those efforts are constitutional has no place in the discussion says law professor Erwin Chemerinsky. Chemerinsky, founding dean of the University of California, Irvine School of Law, in a column for today's Los Angeles Times, maintains that the federal government can regulate health care without violating the Constitution.
Specifically Chemerinsky addresses claims from some healthcare reform critics that requiring all Americans to either obtain healthcare insurance or pay a tax is constitutionally suspect.

Chemerinsky maintains:

First, they say the requirement is beyond the scope of Congress' powers. And second, they say that people have a right to be uninsured and that requiring them to buy health insurance violates individual liberty. Neither argument has the slightest merit from a constitutional perspective.

Congress has broad power to tax and spend for the general welfare. In the last 70 years, no federal taxing or spending program has been declared to exceed the scope of Congress' power. The ability in particular of Congress to tax people to spend money for health coverage has been long established with programs such as Medicare and Medicaid.

Chemerinsky's entire column is here.

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Constitutional Interpretation and Change, Constitution, Erwin Chemerinsky, Healthcare Reform

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