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Thursday, February 10, 2011

The Constitutional Question

Colleen Haller

Staff Writer

The recent court decisions regarding the constitutionality of the Affordable Care Act, specifically the individual responsibility provision or “individual mandate,” have reignited the debate between opponents and proponents of the new law. With two district courts upholding the constitutionality of the mandate and two striking it down, it’s clear now that the fate of the Affordable Care Act will ultimately be up to the nine justices of the Supreme Court.

Although implementation of the law has been moving forward for almost a year and many consumers are already benefiting from new consumer protections, the politics surrounding the law continue to be highly partisan. That partisan atmosphere has, in many ways, been one of the most challenging parts of this debate. For every voice of reason that wants to talk about how specific provisions of the law will work or how a specific provision can be changed or improved, there are 100 voices shouting that the bill amounts to “socialism” and a “government takeover of health care.” With that kind of over-heated rhetoric, it’s difficult to find out what’s really going on and what this law will actually mean for you. The same goes for the constitutionality debate.

One year ago, as Congress passed this historic legislation, advocates around the county were far more concerned with getting implementation underway than with these seemingly baseless, purely partisan attacks on the constitutionality of the law. And after 12 judges dismissed these cases entirely and two ruled in favor of the law’s constitutionality, it seemed that the advocates had it right all along. However, opponents of the law have jumped on the two most recent decisions, especially the decision in Florida, as proof that the law is unconstitutional. This sentiment coupled with Congressional Republicans ramping up their rhetoric in response to their failed attempts to repeal the law could leave anyone, especially someone without a background in constitutional law like myself, wondering: is there something to this unconstitutional argument?

This uncertainty is why former President Reagan’s Solicitor General Charles Fried’s testimony before the Senate is so important. Fried, a longtime Republican, testified that although he had concerns about some of the provisions in the law, he was “quite sure that the health care mandate is constitutional.” Fried is by no means a liberal ideologue, but a conservative legal expert who believes that the Commerce Clause does grant the federal government the ability to require individuals to purchase health insurance.

Fried’s reasoning goes back to the 19th century, when Chief Justice John Marshall said concerning the government’s ability to regulate commerce, “what is this power? It is the power to regulate. That is—to proscribe the rule by which commerce is governed.” Basically, there are several laws on the books that already allow the government to regulate health insurance, and the government has the ability to define the rules under which that regulation will occur. In this case, the individual responsibility provision is that rule.

Going even further, Marshall said of the Necessary and Proper Clause, “The government which has the right to do an act and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means.” In other words, the Commerce Clause grants Congress the ability to regulate commerce, in this case health insurance, and the Necessary and Proper Clause grants them the authority to decide what is necessary to accomplish that goal. The individual responsibility provision is the “necessary and proper” way for the government to effectively regulate the insurance market, i.e. prevent denials of coverage for people with pre-existing conditions, ban or limit annual and lifetime caps on coverage, ensure that people don’t get dropped from their coverage when they get sick, etc.

It’s one thing to argue whether the individual responsibility provision is smart policy or not (I happen to think it is smart). But when it comes to the question of constitutionality, while opponents of the law continue to grandstand about this ‘big government takeover,’ I would prefer to turn my attention toward  experts like Charles Fried, who have put aside their political motivations and acknowledged that the provision has a strong constitutional basis. Knowing that, I can only hope that the Supreme Court will do the same. In the meantime, instead of wasting time reliving the legislative debate, let’s move forward together and continue to implement this law in the best, most consumer-friendly way possible.