Health Care Reform

  • February 18, 2011
    Guest Post

    By Simon Lazarus, Public Policy Counsel for the National Senior Citizens Law Center, and author of the ACS Issue Briefs, "The Health Care Lawsuits: Unraveling A Century of Constitutional Law and The Fabric of Modern American Government." and "Mandatory Health Insurance: Is it Constitutional?"

    In a procedural motion that may prove more significant than its low-key framing may suggest at first glance, the Department of Justice this week filed a "Motion To Clarify" with Judge Roger Vinson of the Northern District of Florida in Pensacola. The Motion asked the judge to "clarify" that his two-and-a-half-week old January 31 declaratory judgment invalidating the "individual mandate" or "individual responsibility provision" of the Affordable Care Act (ACA) "does not relieve the parties of their rights and obligations [under the ACA]" until appeals are exhausted. In this case, that date is unlikely to occur without a definitive Supreme Court ruling, perhaps two years from now. 

  • February 17, 2011
    The argument that the Affordable Care Act includes a provision that will greatly increase the power of Congress and trample liberty is intended to "scare" up opposition to the landmark law, said Rep. John Conyers, Jr. during yesterday's House Judiciary Committee hearing on the law's constitutionally.

    Conyers also said that long before they opposed the law's individual responsibility provision, which requires some Americans to maintain health care insurance starting in 2014, many Republican leaders supported it. He noted that Sens. Orrin Hatch and Charles Grassley included a similar provision in legislation they put forward in response to the health care reform measure advanced during the Clinton administration. The House Judiciary Committee's Ranking Member also noted that former Mass. Gov. Mitt Romney supported a provision requiring citizens to carrying health care insurance. That state law, Conyers said, "helped reduce insurance premiums by 40 percent while the national average has increased 14 percent."

    Conyers addressed health care reform opponents' claims that Congress has exceeded its constitutional authority by enacting the individual responsibility provision, saying that its power to regulate commerce and to use "necessary and proper" means to advance legislative priorities buttresses the constitutionality of the provision.

    The representative also took on the claim that the Affordable Care Act endangers liberty.

    He said:

    Finally, we have been hearing that this is all about individual liberty, the right to be let alone. But is it really? For example, states can, and do, require citizens to purchase car insurance. And, in Massachusetts, legislation signed by former Governor Romney obligates the state's residents to purchase health insurance. Many other laws impose affirmative action obligations on our citizenry: we must pay taxes, send our children to schools and vaccinate them, contribute to Medicare and Social Security, to name just a few. Surely some citizens would like to avoid these requirements as well. But, aside from religious objectors, who also are excused here, they have no constitutionally recognized right to do so. The liberty interests at stake do not change simply because it is the federal, rather than the state, government that is imposing the requirement. While we can debate whether the Congress has the power to impose this requirement - something I believe we clearly do - we should not scare Americans into believing that how we resolve that questions says anything about their individual liberty.

    For more discussion about the health care reform law's individual responsibility provision see the following debate between Simon Lazarus of the National Senior Citizens Law Center and George Mason University law school professor Ilya Somin. Also, on March 3, former U.S. Senate Majority Leader Tom Daschle will provide a keynote address at an ACS event featuring a debate on the 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.

  • February 10, 2011
    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.

  • February 9, 2011
    The Cato Institute has unleashed an ad campaign apparently intended to help Americans understand the Constitution that instead apes the Tea Party's skewed views of the nation's founding document, as Elizabeth Wydra writes in a post for the Constitutional Accountability Center's Text & History blog.

    Cato's ad, appearing in newspapers, such as The Washington Post, says that citing the Constitution is important, but understanding it is "critical." It then provides a page of text that, as Wydra points, makes clear that Cato, a self-described libertarian group, has missed the boat on understanding.

    As Wydra points out, the Cato ad takes aim at constitutional powers of Congress, specifically its powers to tax, to regulate commerce and its broad power to enact laws "necessary and proper" to carry out its constitutional duties. Cato claims that Congress's powers have "since the New Deal been read as authorizing Congress to do far more than was ever imagined by those who wrote the Constitution," leading to an out-of-control federal government.

    Cato's wrong, Wydra says. She writes:

    Undeterred by the actual text and history of our Constitution, Cato joins an impressive array of forces that have been doing everything they can to convince Americans that our Constitution somehow establishes a weak central government incapable of acting to address national issues like health care reform, environmental protection, and financial system reform.


    This is nothing less than a concerted campaign to plant in Americans' heads the ideas that the federal government has transgressed the bounds of our Nation's charter and dangerously overreached.

    The problem is that the Tea Party and their allies are seeking to return to a different founding document than our actual U.S. Constitution - what they really want is a return to the failed Articles of Confederation. As my colleague David Gans and I explained in Constitutional Accountability Center's Issue Brief entitled Setting the Record Straight: the Tea Party and the Constitutional Powers of the Federal Government, the Articles of Confederation established the weak central government apparently so beloved by Cato and the Tea Party. But the Articles' experiment in weak central government was a complete failure, which is why it was jettisoned, as the Founders came together to craft a ‘more perfect union' that expressly vested the federal government with enumerated but significant powers to act in the Nation's interest. Cato's ad today pretends that the Articles were never discarded, and that the idea of a hobbled, weak central government is not a historical loser.

    Yesterday, ACS published an Issue Brief by Simon Lazarus who says the forces behind the legal theories aimed at bringing down the landmark health care law are similarly looking for a return to a time when the Constitution was understood as sharply limiting the federal government's ability to address nation issues.

    "If successful," Lazarus writes, "the challenges would be a major step toward reinstating a web of tight constitutional constraints on congressional authority that conservative Supreme Court majorities repeatedly invoked during the first third of the 20th century to strike down economic regulatory laws. In the late 1930s and thereafter, the Supreme Court jettisoned this conservative activist jurisprudence, replacing it with constitutional interpretations supporting Progressive Era, New Deal, Great Society, and kindred reforms."