Wednesday, October 13, 2010

Is health-care act constitutional?

This is the third column on current issues involving the U.S. Constitution by Hailey attorney and former adjunct law professor Theodore "Ted" Graham. Questions or comments may be e-mailed to Graham at:


The national health care law, called the Patient Protection and Affordable Care Act, was passed in January and signed by the president. Congress determined that an estimated $43 billion deficit caused by uncompensated medical services could be ameliorated if everyone was required to purchase health insurance.

However, that part of the act, called Section 1501, is constitutionally problematic.

Before discussing the constitutionality of Section 1501, it is important to remember that President Obama wanted a "single-payer" national health care program following England's and Canada's examples. But the public opposed such a scheme. Congress, facing this horrendous problem, declined to deal with it incrementally with such measures as allowing health insurance companies to market their products across state lines or putting caps on judgments against doctors and hospitals for "pain and suffering," as several states have done.

This act, which took about a year to pass Congress, was an example of the competing pressures and special interests and deal-making behind closed doors. It was the process as much as the actual provisions of the act that turned off the public.

Opposition to the act, and particularly the attack on Section 1501, begins with the issue of whether Congress had the authority to pass such a law under the Commerce Clause of Article I, Section 8 of the Constitution, which reads in part, "to regulate Commerce (economic activity) ... among the several States." Opponents contend that Section 1501 is beyond the limits of the Commerce Clause because an individual's decision not to engage in economic activity (not to purchase health insurance) does not constitute "economic activity."

This new reach of Congress' power under the Commerce Clause is one of first impression for the courts. It will someday be decided by the Supreme Court unless Congress amends or repeals the act, which is unlikely given the veto power of President Obama.

Is there case authority for Section 1501 or something like it? The answer is "maybe yes, maybe no." The government relies on the opinion in Wickard v. Filburn, decided in 1942 and involving a congressional act passed during the Depression. There, the court upheld the power of Congress to prohibit the personal cultivation of wheat and consumption by a single farmer who never sold any of his crop on his private farm. The Supreme Court, using what could be termed a gossamer-thin thread of logic, held that this farmer affected interstate commerce because his consumption of wheat reduced the amount of wheat produced and consumed nationally.

There is also the Supreme Court decision in Gonzales v. Raich (2005), in which the court concluded that the aggregate effect of personal growing and consumption of marijuana for medicinal purposes pursuant to California law had a sufficient impact on interstate commerce to warrant regulation under the Commerce Clause.

In the wheat and marijuana cultivation cases, however, there was a voluntary decision to perform an act. Opponents argue this most critical element is absent in the regulatory scheme of Section 1501.

We have also seen a recent shift in the government's tactics to find a constitutional rationale. The act refers to a "penalty" to be imposed against a non-compliant person. This penalty was at the last moment made the responsibility of the Internal Revenue Service to collect. But the president has vigorously asserted that the penalty is not a tax. (He promised no new taxes for the middle class). However, the power of the federal government to tax individuals is explicitly provided by the Constitution and we now see the government claiming the "penalty" is a tax and therefore within its powers.

The fate of Section 1501 cannot be predicted within any certainty because it will rest with a decision to be made by the nine Supreme Court justices. The decision is most likely to follow the liberal-vs.-conservative division on the Supreme Court. Unlike recent decisions involving the Second Amendment (right to keep and bear arms), this Supreme Court decision, many months away, promises to have a direct impact, one way or another, on each of our lives.

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