Health Care And The Constitution

“The layman’s constitutional view is that what he likes is constitutional and that which he doesn’t like is unconstitutional.” -Hugo Black

Since the passage of the healthcare bill, a number of states have initiated lawsuits against the federal government challenging the constitutionality of the bill. From McClatchy News:

“The top prosecutors in 13 states — 12 of them Republicans — filed a lawsuit Tuesday challenging the health-care bill minutes after President Barack Obama signed the landmark legislation into law.”

This article from the Washington Post outlines what issues are at stake.

The debate seems to be in favor of the president. The McClatchy article quotes several legal experts on the matter, all of whom seem to think that the lawsuits will not be successful.

“It would be surprising if the (Supreme Court) says Congress can’t regulate people who are participating in the $1 trillion health-care market,” said David Freeman Engstrom, a Stanford University Law School professor. “The lawsuit probably doesn’t have legs both as a matter of precedent and as a matter of common sense.”

Sanford Levinson, a University of Texas Law School professor, said that Americans who choose not to purchase health insurance can pay a fine under the new law. Congress, he said, clearly has the authority to levy taxes and fines.

“As a technical matter, it’s been set up as a tax,” Levinson said of the penalties under the health-care law. “The argument about constitutionality is, if not frivolous, close to it,” he said.

“You’d have to imagine that the five conservative Republicans on the Supreme Court will be willing to invalidate the most important piece of social legislation in 50 years on the basis of a highly tendentious and controversial reading of the Constitution.”

Randy Barnett, a Georgetown University Law School professor, said that federal judges historically have been reluctant to overturn measures passed by Congress.

“Whenever a congressional statute is being challenged, the smart money is that the courts will uphold the statute,” Barnett said. “So whoever is challenging an act of Congress is always an underdog. The federal courts don’t want to say no to Congress.”

The New York Times has hosted a debate between a number of legal scholars who speculated on what the Supreme Court would decide. A number of them also seem to think that the bill would withstand a challenge.

The Wall Street Journal also seems to think that the bill is consitutational, although they note:

“But the court has never considered a federal program structured like the health overhaul, which would require people without insurance to buy it or face a tax or penalty. The nonpartisan Congressional Research Service said in July that it was a “challenging question” whether the commerce power extends that far.”

At the end of the day, I doubt anyone would have predicted the Supreme Court’s decision in the Bush v. Gore case, so it’s anybody’s guess as to what will happen.