Private: Health Care Opponents Yearning for a Hobbled Federal Government, Newspaper, Issue Brief Say

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Brief the opponents of the landmark health care reform law, the Affordable Care Act, are fighting to advance a long-outdated view that the Constitution limits the federal government's ability to effectively address national concerns.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.

Constitutional Interpretation, Supreme Court