Despite claims about unprecedented intrusion on liberty, the litigation over the landmark health care reform law is really an “effort to change existing doctrine to have courts create and impose a new limitation on Congress’s ability to deal with major national economic problems,” said Indiana University law professor Dawn Johnsen during a plenary panel discussion at the ACS 10th Anniversary National Convention. She added that ultimately this effort to fundamentally change law surrounding commerce clause authority should remind us of the importance of judicial nominations.
Since 1937, Johnsen, a member of the ACS Board, noted that the Supreme Court has almost always upheld Congress’s authority to enact laws regulating economic concerns. There have been only a few cases in recent time where the high court has invalidated laws as falling beyond Congress’s power to regulate commerce, she said. But the narrow majority in those cases expressed concern that the acts in question were too far afield from regulation of economic concerns. The Affordable Care Act (ACA), however, certainly deals with regulation of a major part of our economy, Johnsen concluded.
Randy E. Barnett, professor of law at Georgetown University Law Center, and a critic of the minimum coverage provision, told the audience, to laughter and applause, that the bill it got was one it really didn’t want and was actually a payoff to the insurance companies so they would not oppose the bill. Under current court doctrine, Barnett said, extending Medicare to everyone or having a single-payer plan would be constitutional.
Walther E. Dellinger III, partner at O’Melveny & Myers, and a former Acting U.S. Solicitor General, said without the minimum coverage provision, the ACA could not guarantee that health insurance coverage would be available to those with pre-existing conditions. He maintained that even if the minimum coverage provision were not supported by Congress’s powers to regulate commerce or to tax and spend, it is within Congress’s authority to create laws necessary and proper in carrying out its constitutional powers.
Dellinger also took on the Right’s frequent argument that the ACA represents an unprecedented government intrusion into health care.
“We hear the talks about government intrusions into health care – that this represents an extraordinary step about liberty,” he said. “And I just cannot, any longer, refrain from making the observation that it is really ironic and disturbing to hear that liberty lecture come from people talking about government takeover of medical care, many of whom would legislate the imposition upon women of unnecessary waiting periods [for abortions], government scripted lectures, compulsory sonogram viewings, and government mandated unsafe medical procedures.”
Video of the full panel discussion is available here or by clicking on image below.