The bill passed the House. The President will sign it. The Senate will pass it, probably with some changes. The House will pass it again. It’s been an interesting year and a raucous few days.
But don't think that just because health care reform is passed that the controversy will end. Hardly.
As this column reported previously, a challenge to the constitutionality of the newly passed health care reform bill is being mounted by 11 Attorneys General, all Republicans.
The individual mandate is the focus
Virginia has already passed legislation making the individual mandate illegal in the State of Virginia. The individual mandate is the portion of the health care bill that requires every American to buy health insurance.
As previously reported legal scholars do not expect this legislation to withstand a federal challenge.
Florida Attorney General Bill McCollum told reporters that he believed the mandate to require individuals to buy health insurance is unconstitutional and infringes on each state’s sovereignty. He intends to join 10 other Attorneys General to challenge the constitutionality of the bill as soon as it is signed.
Some states believe that the new health care bill is an intrusion by the federal government into areas that are by right the province of each state. The Attorneys General of Alabama, Florida, Michigan, Nebraska, North Dakota, Pennsylvania, South Carolina, South Dakota, Texas, Utah and Washington. plan to band together in a collective lawsuit .
Most legal scholars believe lawsuits will fail
The likelihood that these suits will succeed is unlikely according to most legal scholars. In constructing the health care reform bill, Congress structured the mandate as a tax and we all know that the federal government has the power of taxation.
Courts have almost universally deferred to the right of Congress to pass taxation legislation as long as that tax is a revenue raising device. The individual mandate is a key element in paying for the health care bill, so it is unlikely to be overturned.
The Commerce Clause rules
The 11 Attorneys General believe that the requirement to buy health insurance does not meet the requirement of engaging in interstate commence. According to Virginia Attorney General Kenneth Cuccinelli
“ If a person decides not to buy health insurance, that person by definition is not engaging in commerce. If you are not engaging in commerce, how can the federal government regulate you?"
But this argument has been made before and lost. In 1942 a small farmer in Ohio named Filburn violated federal production limits on wheat. Filburn argued that he was only growing the excess wheat for his own personal use and had no intention of selling it. He argued that it was not intended for interstate commerce. He lost. The wheat was destroyed.
Congress has been very successful in regulating a lot of things which may not seem to involve interstate commerce.
Most legal scholars believe that these lawsuits will not have much success and are more political statements than real legal challenges.
Join in the continuing debate. "Subscribe" please and make your voice heard by posting your comments and opinions.
Comments
I like my right to privacy. How is this individual mandate not a violation of the right to privacy? Consider: This individual mandate says that we as private citizens have to do the private behavior of buying a certain type of private commodity coupled with this tax penalty for not engaging in this private behavior. I have seen some argue along the line that this is just the power to tax, in that government has the right to say, "OK, we're going to hit you with this tax, but if you engage in this private behavior that we tell you to do, then we'll give you a tax credit to wipe out the tax, but you also have to use this tax credit in the context of this private behavior as we tell you." Question: If this is held up as legal, then what's to keep government from doing this - using the power to tax as a subterfuge for violating our right to privacy - with respect to any of our private behavior it wants?
Dear "I like my privacy"
Thank you for reading and commenting. Your comments are extremely interesting but I am having some trouble making the connection between buying insurance and privacy. Personally I think filling out my tax forms opens up more privacy issues. So does going to a doctor or opening a bank account. I can't drive a car unless I buy auto insurance; I can't run my business without buying liability insurance.
Do you have health insurance through an employer? As an employer I pay a portion of my employees' health insurance (the state tells me I have to contribute ) and I see health documents that are really private. I not very interested in their health history but I see it whether I want to or not. Of course I sign a HIPPA statement not to divulge the information but I still get to see it.
I guess I just don't understand what you mean by "private behavior?" What is "private behavior?" I think of it as something I do in my own house. Please tell me more.
It's obvious that for many, something is 'constitutional' if they like that something. So imagine that a republican president and republican Congress squeaked a comprehensive crime bill by with zero bipartisan support that would mandate every able-bodied, mentally-stable, non-felon to buy a handgun, complete NRA training, and earn a concealed-carry permit -- for the 'greater good.' Fines of x amount or income times 2.5% (which ever is greater) on those who do not wish to do so would be recycled back to those who do via subsidies -- including maybe a retroactive subsidy to those already with a Glock, Smith, or Ruger. Now how do you feel about the constitutionality of mandating an individual to buy something? Legal beagles should also take note that since Filburn in 1942, centrally-planned (mandating) economies such as the FSU have bit the dust. So extending the powers of Congress over things people don't do may not be too appealing to the SCOTUS under the Commerce Clause
Does a state "opt out" clause make an unconstitutional law less unconstitutional? Would that state "opt out" clause in this law containing the individual mandate make that mandate constitutional? What's to keep some future government dominated with religious conservatives - modern Republicans - from mandating that everyone buy and use explicit content filters in their TV sets and computers (to save the children) or face an IRS fine? Suppose they were to try to outlaw abortion or outlaw women crossing state lines to get abortions by giving the states an "opt out clause" for these laws. -------- There is no end to this very slippery slope of violating our right to privacy using the federal power to tax or regulate interstate commerce as subterfuge. Where is the ACLU? Where are the true civil libertarians?
Got something to say?
Examiner.com is looking for writers, photographers, and videographers to join the fastest growing group of local insiders. If you are interested in growing your online rep apply to be an Examiner today!