In a historic move, President Obama on March 23, 2010 signed a sweeping health care reform bill into law, which became known as the Patient Protection and Affordable Care Act. As soon as the bill was enacted into law, however, 14 states, through their respective attorneys general, have jointly filed a lawsuit before a federal court in Florida questioning the constitutionality of the law. Also, it has been reported that at least 36 states have enacted legislation prohibiting health care reform.
Individual Mandate to Purchase Insurance
The core issue in the lawsuit is the requirement for individuals to purchase health insurance or pay a tax. According to the lawsuit, the "[a]ct represents an unprecedented encroachment on the liberty of individuals . . . by mandating that all citizens and legal residents of the United States to have qualifying healthcare coverage or pay a tax penalty . . ." It further states that "[b]y imposing such a mandate, the Act exceeds the powers of the United States under Article I of the Constitution and violates the Tenth Amendment to the Constitution."
Regulatory Powers of Congress
Article I of the U.S. Constitution enumerates the powers of Congress. Congress can only legislate if the subject matter falls within those express powers or can be implied therefrom. Under the Tenth Amendment to the Constitution, the federal government can only exercise powers expressly or impliedly provided by the Constitution (such as Article I), and those not so provided, as well as not prohibited to the states, are reserved to the states. The lawsuit claims that the individual mandate is not among those powers granted to Congress by the Constitution.
The Commerce Power
Among the enumerated powers of Congress under Article I, Section 8 is the commerce power. It states that "The Congress shall have the power . . . [t]o regulate Commerce with foreign Nations and among the several States . . ." In several decisions of the U.S. Supreme Court, the commerce power of Congress includes regulating activities having a substantial effect on interstate commerce.
Opponents of health care reform assert that the individual mandate does not fall within the commerce power of Congress. In his Washington Post (March 21, 2010) article "Is Health-Care Reform Constitutional?," Georgetown University law professor Randy E. Barnett argues that while Congress may regulate insurance under the commerce power as an economic activity with substantial effect on interstate commerce, the individual mandate to purchase private insurance does not contemplate an economic activity. According to Barnett the madate targets an inactivity, which is the non-possession of a health insurance, and to him this is unprecedented.
The lawsuit also mentions that the individual mandate does not fall within Congress's commerce power and argues along the same line as Barnett. Viriginia Attorney General Ken Cuccinelli, who filed a separate lawsuit, claims that ”[t]he status of being a citizen or resident of the Commonwealth of Virginia is not a channel of interstate commerce … Instead, the status arises from an absence of commerce, not from some sort of economic endeavor, and is not even a non-economic activity affecting interstate commerce.”
But in a paper published by the O'Neill Institute of Georgetown University, entitled "Legal Solutions in Health Reform" by Mark Hall, who specializes in health care law and public policy, it found the commerce clause applicable to the individual mandate. According to Hall, health insurance has clearly been an economic activity that substantially affects interstate commerce. Hall also argues that individual mandates directly affects interstate commerce because it leads to insurance coverage of more people that will reduce the cost of insurance premiums.
Also, law professor Jack Balkin of Yale Law School asserts that the requirement to purchase health insurance relates to an economic activity because, according to him, when people get sick the cost of their medical care is passed on to other people or absorbed by hospitals. Hospitals recover by passing this loss to insured patients by increasing their fees and charges, which then adds to the cost of insurance.
Federal Law vs. State Law
It has been reported that there are 36 states that have passed so-called anti-reform legislations or laws that prohibit the implementation within their states of the newly-passed health care reform law. It is doubtful, however, if these laws can withstand constitutional muster. Under the Constitution's supremacy clause, federal law supersedes or preempts state law. As observed by Barnett, "under the 10th Amendment, if Congress enacts a law pursuant to one of the "powers . . . delegated to the United States by the Constitution," then that law is supreme, and nothing a state can do changes this."
Due Process Violation
The anti-health care lawsuit claims that the individual mandate is an encroachment on individual liberty. The individual mandate, according to it, forces citizens and residents to perform an affirmative act, even if they don't want to, under pain of penalty. Although it did not specifically mention due process violation, the claim opens the door to a discussion on whether the health reform law violates due process or is an unwarranted infringement on individual's fundamental freedoms.
The 5th Amendment to the U.S. Constitution will only allow the deprivation of a person's life, liberty or property with due process of law. Compelling a person to purchase private insurance (parting away with one's money) may be characterized as taking of one's property, and for such to be valid it must be with due process of law. But according to Hall, there are two problems to this: (1) the substantive due process clause does not apply to general economic and social rights (according to him the right to retain one's money merely involves economic interests) and (2) compelling someone to part with his or her money has not been considered "taking" nor is money considered "property" under the Constitution's takings clause. Hall summarizes his argument by saying that there is no fundamental right to remain uninsured.
References:
The U.S. Constitution;
Chemerinsky, Erwin. Constitutional Law: Principles and Policies. Aspen Publishers: New York. 2006.
Renato Bautista, Jr. - Renato Bautista, Jr., who is also known as Jun, is an attorney in the Philippines and loves to write about law and politics. As an ...
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