[Archive] Constitutional dilemmas: Obama's health-care package

[Archive] Constitutional dilemmas: Obama's health-care package



debate concerns the Affordable Care Act which is President Obama's health care reform legislation passed in 2010 much of the reform is a regulation of the health care insurance industry and one of the stated goals is to increase the number of people who have health insurance and specifically those who would be denied because of pre-existing conditions all of the constitutional debate however surrounds one provision the individual mandate or the individual responsibility provision this provision requires people to purchase health insurance with some exceptions and the way it does it is with a penalty or a fine if you don't purchase minimum health insurance so what's the debate about well the first principles foundational principle that we need to understand is that our government is one of limited powers that means any time Congress asked any time Congress passes a law they have to be able to point to a provision in the Constitution that authorizes that use of power there are three cheap candidates for the authorization of this law they have the power to tax Congress has the power to regulate commerce among the states and Congress has the power to do whatever is necessary and proper to effectuate their other laws pass another other sources of power in recent years the Supreme Court is outlined three types of situations where Congress can regulate commerce among the states the first one is easy channels of Interstate Commerce highways railroads things like that the second one's also fairly easy goods or people that pass through interstate commerce or instrumentalities of Commerce the third category is where really the fighting category and that's local activity or intrastate activity that substantially affects interstate commerce so what do we mean by substantially affect interstate commerce well the Supreme Court recently has drawn a line between economic activity and non-economic activity economic activity if Congress is regulating that it has broad latitude we're going to be very generous with how they can use the Commerce Clause the scope of their Commerce Clause power what about non economic activity this is where the Supreme Court has been a little bit tighter on Congress so in two cases since 1995 the Supreme Court has struck down a piece of legislation because it involves non-economic local intrastate activity that the court has said is beyond the scope of the Commerce Clause power those who support the law who say its constitutional have several arguments under the Commerce Clause what they say this is economic activity when you decide not to purchase health insurance you are making an economic choice their second argument even if it's not economic activity if it's non-economic then the Congress can still regulate because failure to do so would undermine their broader regulation of health insurance generally finally the last argument they make it forget this Commerce Clause stuff all you need to say is this is a tax we incentivize people to take activities all the time the penalty is just a choice you can either buy health insurance or pay a tax if you don't and Congress has broad authority under their taxing Clause power to collect taxes for the general welfare okay so what's the argument on the other side the other side of the argument is look if Congress is limited at all if the Commerce Clause means anything it means that Congress cannot regulate in activity here Congress is regulating people just for existing as human beings they're forcing people to engage in commerce as opposed to regulating their activity in commerce so for example under this argument if anything goes here if Congress can do this then they can also pass a law requiring people to do 15 steps when they get up in the morning it is such a great semester to be a constitutional law teacher and a constitutional law student it shows that all of these old historical debates about the indeterminacy of the Constitution what do we mean by regulating commerce among the states they're all alive and well and relevant and that is a wonderful thing as a teacher to be able to get your students engaged on Commerce debates from the 1930s and how they apply to health care debates today it's very rewarding you

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