Health Law: No Big Deal Or Congressional Overreach?

February 2, 2011

Liz Halloran

The U.S. Supreme Court in all likelihood will decide the constitutionality of the nation's 2010 health care law. But on Wednesday morning, the Senate Judiciary Committee got a preview of the arguments that justices will likely hear.

Depending on which esteemed legal scholar was weighing in, the Affordable Care Act is either no big deal, constitutionally speaking, or an extraordinary congressional distortion of its powers.

Not much in between.

The hearing, called by Democratic Sen. Dick Durbin of Illinois, came two days after a federal judge in Florida ruled that the organizing premise of the law — its requirement that almost all individuals purchase health insurance — is unconstitutional. The judge found that Congress exceeded its constitutional authority to regulate commerce among states by imposing the insurance mandate, which takes effect in 2014.

Durbin, at the opening of the hearing, noted that 12 federal district court judges have dismissed efforts to challenge the law; two have found the measure constitutional and two — including U.S. District Court Judge Roger Vinson in Florida — have found the opposite. The U.S. Justice Department has said it will appeal Vinson's ruling.

Durbin said that "this is not the first major law challenged in court" but ultimately upheld in the Supreme Court. Other such laws include the Social Security Act, the Civil Rights Act, and the federal law guaranteeing a minimum wage.

The challenge to the health care law is, on its face, fairly straightforward. Georgetown law professor Randy Barnett laid it out — he's been instrumental in shaping the legal case against the measure.

The mandate requiring people to purchase insurance may be "convenient" for regulation of the national economy, Barnett said, but it is "neither necessary nor proper."

He and Washington lawyer Mike Carvin argued that the insurance requirement distorts the marketplace because it helps "ameliorate" the financial burden insurance companies will face once required to cover everyone — even people with pre-existing conditions.

Requiring citizens to send their money to private companies for coverage, and punishing them for "inactivity" if they don't comply, is tantamount, Barnett argued, to turning Congress into a king and people into its subjects. "Congress cannot bootstrap its powers in this way," he said.

Not so fast, warned Walter Dellinger, a former U.S. solicitor general and professor emeritus of law at Duke. "The people elected a Congress in 2010," he said, and it was that Congress that passed the law. "That is why we are not subjects," he said. "We are citizens."

Dellinger said the law is constitutionally "rather unremarkable." And he took exception to an aspect of Vinson's Florida decision that referred to Bostonians of pre-Revolutionary times who tossed tea in the harbor to protest a tax imposed by the British Parliament.

"The reason they threw tea in to the harbor," Dellinger said, "was taxation without representation." Not exactly an apt analogue, he argued.

John Kroger, Oregon's attorney general, argued that those who oppose the individual mandate ignore the fact that when any of the nation's 40 million or so citizens who lack insurance get sick or injured, hospitals are required to treat them — at a cost of billions of dollars borne by others.

"There is no constitutional right to force other people to pay for your health care," Kroger said — no protections for "freedom to freeload."

Harvard law professor Charles Fried, who served as solicitor general in the Reagan Administration and later as a Massachusetts Supreme Court justice, argued that legal precedent suggests strongly that the health care law is "consistent with the letter and spirit of the Constitution."

Fried asserted that insurance is a commerce, and Congress has a right to regulate it — including imposing a mandate. "I'm not sure it's good policy," he said, but there's "no doubt that it's constitutional."

But Barnett warned that if Congress doesn't alter the law, it is on a constitutional collision course with the Supreme Court. Consider alternatives, he advised, "sooner rather than later."

One note: Judging from Wednesday's testimony, it's probably worth boning up on Wickard v. Filburn, a Supreme Court case circa 1942, as challenges to the health law move through the courts. Copyright 2011 National Public Radio. To see more, visit http://www.npr.org/.