Are there Legitimate Constitutional Challenges to the Health Care Bill?

Post by Randall Ryder

Republican lawmakers, among others, are criticizing the recently passed health care reform bill on grounds that it violates the US Constitution. Digging deeper, are these legitimate challenges to the bill?

I am unequivocally in favor of health care reform and I think providing health care to approximately 30 million uninsured Americans is a great thing. But as my colleagues have pointed out, it is not that simple. If the bill does, in fact, violate the Constitution, where does that leave things? As my wife pointed out, things proceed down a slippery slope when laws are passed on the grounds of "the ends justify the means, even if that means trampling the Constitution." 

Until someone challenges the bill, and the Supreme Court takes the case, we may not actually know where it stands. Should the Supreme Court, or another court, elect to take the case, here are some issues to consider.

Violation of the Commerce Clause. This clause in the Constitution grants Congress the power to regulated commerce among the several states. This power has gone through significant interpretation by the Supreme Court, and has been extended to all sorts of economic activities. Arguably, many of the regulations do not directly regulate interstate commerce, but the Court has still allowed Congress to regulated on the grounds it substantially affects interstate commerce. There is no doubt that health care substantially affects interstate commerce.

The key, however, is that the bill penalizes individuals who have no health coverage, thereby regulating economic inactivity. Essentially, the government is not only regulating economic activity, it is requiring individuals to engage in economic activity. Obviously, the argument is much more complicated than that. But those are the key components of the argument. 

Let’s say the Supreme Court took up the argument. Would five justices vote to strike it down? By the time the case reached the Court, the makeup will have changed. Even then, would there be enough momentum? Bush v. Gore establishes that there is always the possibility justices may vote on partisan lines. That said, the justices would never admit that case was decided on purely political grounds, although analysis tends to show the opposite.

The health care debate is not over, in all likelihood it is just beginning. Whether the bill can withstand Constitutional challenges, however, is not a question that will be answered anytime soon.

Is health-care reform constitutional? | The Washington Post



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