Health Care Reform

As noted in a new ACS Issue Brief the opponents of the landmark health care reform law, the Affordable Care Act, are fighting to advance a long-outdated view that the Constitution limits the federal government's ability to effectively address national concerns. Simon Lazarus, author of the brief, "The Health Care Lawsuits: Unraveling a Century of Constitutional Law and the Fabric of Modern Government," writes that the opponents are pushing legal theories that if accepted by the federal judiciary would endanger other landmark federal laws and programs, such as Medicaid, Medicare and civil rights laws.

The opponents of the health care law argue, Lazarus writes, that Congress does not have the constitutional ability to "effectively reform a dysfunctional health care market comprising over 17% of the national economy, that causes 62% of personal bankruptcies, leaves 50 million citizens uninsured, and deprives individuals with pre-existing medical conditions of access to affordable health insurance and, thus needed health care." If the high court were to buy into those arguments and "block an undisputed rational solution for an economic problem so big and so urgent, what limit is there on the Court's capacity to hamstring federal stewardship of the national economy?"

A recent editorial in The New York Times also notes the health care opponents' broader agenda. Noting a recent hearing before the Senate Judiciary Committee on the constitutionality of the health care reform law, the editorial cites Georgetown law professor Randy Barnett's testimony attacking the health care law as "a means to severely limit the power of Congress, urging senators to reach their ‘own judgment about the scope of Congressional powers,' regardless of ‘how the Supreme Court,' has ruled." Later in his testimony, the editorial notes, Barnett "warned sensationally, ‘Congress would have all the discretionary power of a king and the American people would be reduced to subjects,'" if the Supreme Court finds the health care law's individual responsibility provision falls within Congress's constitutional authority to regulate commerce.

Barnett's overwrought rhetoric falls in line with talking points being pushed by other far-right opponents. The Cato Institute, as the Constitutional Accountability Center's Elizabeth Wydra recently noted, has run ads in national publications arguing that the Constitution was never intended to give Congress broad powers to regulate commerce.

But The Times says, citing former U.S. Solicitor General Walter Dellinger, who also testified at the Senate committee hearing, by applying a "mainstream understanding of the Constitution," this debate can be simply resolved. As Dellinger put it, "Will it lead to some extraordinary expanse of congressional power? It will not."

On March 3 at the National Press Club, ACS will host an event examining the debate over the constitutionality of the health care law's individual responsibility provision, featuring a keynote address by former U.S. Senate Majority Leader Tom Daschle. Daschle is author of a recent book, Getting It Done, an in-depth look at the passage of the historic law.

Another of the nation's leading constitutional law scholars has weighed in on the festering legal debate over the landmark health care reform law, finding that in all likelihood the Supreme Court won't find much of a conundrum over Congress's authority to enact the law.

Instead, Laurence H. Tribe, a distinguished Harvard Law School professor and author, says the legal challenges aimed at the Affordable Care Act's individual responsibility provision, which requires some Americans to purchase health care insurance starting 2014, are political objections, not legal ones.

Tribe writes in an op-ed for The New York times that Congress's enactment of the individual responsibility provision does not run afoul of its powers pursuant to its constitutional powers to regulate commerce or to tax and spend. He writes:

Since the New Deal, the court [U.S. Supreme Court] has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law's constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has power to regulate?

Tribe adds that the current Supreme Court is not likely to "be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic ‘activity,' not ‘inactivity,' like the decision not to purchase insurance. This distinction is illusory. Individuals who don't purchase insurance they can afford have made the choice to take a free ride on the health care system. They know that if they need emergency-room care that they can't pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper choice for federal regulation."

Today ACS released an Issue Brief that examines what would happen if the Supreme Court were to adopt the legal theories driving the lawsuits lodged against the Affordable Care Act.

Simon Lazarus writes in "The Health Care Lawsuits: Unraveling a Century of Constitutional Law and the Fabric of Modern American Government," that the opponents of the health care law are trying to advance radical constitutional change that would sharply limit the ability of Congress to effectively respond to national issues, such as the rising costs of health insurance and the large number of uninsured. If the opponents' legal theories were to win the day, Lazarus says other landmark laws and programs, such Social Security, Medicaid, Medicare and civil rights laws would all be in danger. An executive summary, and the Issue Brief are available here.