By Simon Lazarus, Public Policy Counsel for the National Senior Citizens Law Center, and author of the ACS Issue Brief, "Mandatory Health Insurance: Is it Constitutional?"
Today's decision in Florida federal district court striking down the Affordable Care Act in its entirety would effectively shred the Constitution as it has been interpreted, applied, and endorsed across a broad ideological spectrum for the last three-quarters of a century - since the New Deal - and, actually, dating back to Chief Justice John Marshall's expansive interpretations of the constitutional provisions directly at issue here. This decision, along with Judge Henry E. Hudson's recent decision to strike essential parts of the ACA, exhume the long-dead and discredited doctrines that the pre-New Deal Supreme Court deployed to overturn laws that prohibited child labor, prescribed minimum wage levels and maximum hours.
Among those who have joined in rejecting the century-old, long-defunct decisions on which Judge Roger Vinson's decision rests, are Justices Scalia, Kennedy, and Chief Justice Roberts. They will have to twist their prior decisions and statements into pretzels in order to rule the individual mandate or other ACA provisions unconstitutional.
Specifically:
In his concurring opinion in Gonzales v. Raich (2005), Justice Scalia spelled out in exquisite detail how the necessary and proper clause gives Congress power to do whatever is necessary to make a broader statutory scheme work - whether or not the specific means employed would be, standing alone, valid under the commerce clause. In that opinion he wrote:
Where necessary to make a regulation of interstate commerce effective, Congress may regulate even . . . activities that do not themselves substantially affect interstate commerce.
Scalia approvingly quoted Chief Justice Rehnquist in the Lopez decision that limited commerce clause authority: "Though the conduct in Lopez was not economic, the Court [Rehnquist] nevertheless recognized that it could be regulated as ‘an essential part of a larger regulation of economic activity, in which the regulatory scheme would be undercut unless the intrastate activity were regulated."
This is a precise characterization of the role of the individual mandate in relation to the insurance reforms in the ACA.
Scalia wrote that under the necessary and proper clause, the government "possesses every power needed to make [its solution to a national economic problem] effective."
Again, one could not ask for a more precise picture of the mandate.
Justice Kennedy wrote a concurring opinion in the 1995 Lopez decision which, 5-4, held the no guns within 1000 yards of a school requirement beyond Congress' power to regulate commerce. Kennedy concurred in this decision with acknowledged misgivings, and wrote a long and expansive decision rejecting the constrained pre-New Deal interpretation of the commerce clause. He said, among other things: "Congress can regulate on the assumption that we have a single market and a unified purpose to build a stable national economy."
It would be difficult to identify a statute more clearly directed at attempting to build a stable national economy - a goal to which the mandate is essential in Congress' judgment.
Chief Justice Roberts, in his 2005 confirmation hearing, testified that Gonzales v. Raich (upholding prosecution under the Controlled Substances Act, enacted under Congress' commerce clause authority, of a woman in California growing marijuana for her own medicinal use) showed that the 1995 Lopez decision and a 2001 5-4 decision striking down a provision of the Violence Against Women Act as in excess of the commerce power "did not junk" the expansive post-New Deal commerce clause interpretations.
Roberts, at his 2005 confirmation hearing, said, "Reading that opinion, it's quite clear that they're not interpreting the law, they're making the law." Just last year, Roberts joined the Court's decision upholding an aggressive application of the necessary and proper clause, underscoring the black-letter law rule that the necessary and proper clause is independent of specifically enumerated powers such as the commerce clause.
None of these statements and rulings are legitimately compatible with the decisions by Vinson and Hudson to strike down the individual mandate.
Both decisions give off more than a whiff of Bush v. Gore, especially Judge Vinson's sweeping and unsubstantiated ruling that striking the mandate requires striking the entire ACA.
The latest research on
The latest research on anxiety suggests innovative, even odd, techniques for coping successfully with recurrent worries. I've seen these work for hundreds of patients. find here
Constitutional to force Americans to pay for HC they won't use?
One serious problem with the Health Care Act is which has not been discussed is that it fails to take into consideration [as does Medicaid and Medicare] the constitutionality [or lack thereof] of forcing Americans to pay for Health Care they won't use because, a) insurance companies as well as Medicaid and Medicare and Medicare Advantage or Supplement plans are not required to provide Alternative Medicine options for those who's religious beliefs or personal needs are not served by traditional medicine; b) are not required to provide proper and affordable mental health services, ie. counseling, in lieu of drugs; c)fails to take into account the fallacy of the National Poverty Line which is still based on the obsolete Orshansky Model, [circa 1963]which continues to label many citizens who cannot afford to pay for health care as "middle class" and not "poor enough" to qualify for Medicaid assistance.By forcing them to pay for health care or face a fine, this law penalizes those who do not fall into the Medicaid Income Eligibility guidelines, forcing them to pay for health care they cannot afford.
My understanding of the intent of the US Constition is that all people are to be treated as equals; have equal access to justice, and cannot be forced to act in a manner antagonistic to their religious beliefs.
THE QUESTION IS: How can a law requiring Christian Scientists or others who do not believe in/or use Traditional Medicine-- to pay for Health Care they won't use, be constitutional when it is antagonist to their religious beliefs and punishes those who --for other reasons-- may not chose to use traditional medicine?
Until all Health Insurance Companies and HMO's are required to provide Alternative Medicine and proper Mental Health Care [NOT DRUGS], the law that requires citizens to pay for something they won't benefit from, does seem unconstitutional and offensive.
IT SEEMS AS IF THE US GOVERNMENT, IN LEAGUE WITH PHARMACEUTICAL INDUSTRY AND HAS BEEN ENABLING AMERICAN DRUG DEPENDENCE FOR DECADES AND MUST BE STOPPED!
Missing the salient point
You miss the salient point. In every previous example, an individual could escape the regulatory scheme by refusing to participate in the regulated activity. Whether you see that as a dangerous extension of federal power or not, two federal judges have recognized it as a unique question for the courts.
Post new comment