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.