The Continuing Debate Over Health Care Law’s Constitutionality

February 16, 2011
National Senior Citizens Law Center Public Policy Counsel Simon Lazarus and George Mason University law school professor Ilya Somin debate the constitutionality of the Affordable Care Act's individual responsibility provision for ACSblog. Their debate coincides with continued hearings in Congress over the constitutionality of the provision that requires some Americans to maintain health care insurance starting in 2014.

Professor Somin, who opens the debate, says the provision is unconstitutional on a number of fronts. Specifically Somin says Congress's power to regulate interstate commerce does mean it has the power to require people to purchase health care insurance. The professor said not purchasing health care insurance is "not commerce and it's not interstate, and therefore it violates both the requirements that the Constitution imposes for an exercise of power under that clause."

Lazarus, author of the recent ACS Issue Brief "The Health Care Lawsuits: Unraveling a Century of Constitutional Law and the Fabric of Modern American Government," said the provision was well within Congress's power to enact, and that if the Supreme Court were to rule otherwise it would mean the Constitution "gives unelected judges the authority to impose a straightjacket on Congress's" ability to tackle national economic concerns. Watch their entire debate below or here.

Congress also heard more debate this morning over the Affordable Care Act's provision, with a House Judiciary Committee hearing that featured two opponents of the provision and one supporter. Virginia Attorney General Ken Cuccinelli who lodged one of the first lawsuits against the health care reform law and Georgetown University Law Center professor Randy Barnett testified against the provision. Walter Dellinger, former Acting U.S. Solicitor General, and chair of Appellate Practice at O'Melveny & Myers LLP, testified in favor of the provision. Earlier this month, the Senate Judiciary Committee conducted a similar hearing.

In written testimony submitted to the Committee, Dellinger said the "assertion that the national Congress lacks the constitutional authority to adopt these regulations is a truly astonishing proposition. When these lawsuits reach their final conclusion, that novel claim will be rejected." Dellinger continued that there "are so many ways that the minimum coverage requirement is an appropriate exercise of Congress's power to regulate the national economy that it is difficult to know where to begin. Let me start with the undoubted proposition that Congress can regulate the terms and conditions upon which health insurance is bought and sold, making it indisputable that Congress can prohibit insurance companies from denying coverage to those with pre-existing conditions."

Barnett, as he did before the Senate Judiciary Committee, warned that if the individual responsibility provision were upheld by the courts it would create a tyrannical federal government. "If this proposition is upheld," Barnett told the House panel, "I submit, the relationship of the people to the federal government would fundamentally change: no longer would they fairly be called ‘citizens;' instead they would more accurately be described as ‘subjects.'"

On March 3, ACS will host an event discussing the legal challenges to the health care law featuring a keynote address by former Senate Majority Leader Thomas Daschle and a panel discussion including Dellinger, Lazarus and Somin.