If at First You Don’t Succeed, Hope for Activist Judges
Conservative State Attorneys Erroneously Claim Health Reform Is Unconstitutional
The ink on the recently enacted health legislation is barely even dry, but right-wing officials are already trying to wipe it away. Eleven conservative state attorneys general are claiming that the new law is unconstitutional in a series of lawsuits, some of which they promised to file immediately after President Barack Obama signed the bill into law. Their arguments, however, have no basis in the Constitution.We here at the Field Guide encourage cons to spend as much of their time as possible with lawsuits, bizarre demonstrations and temper tantrums. As they say idle hands are the devil's work shop and cons seem to have an awful lot of idle time. Which goes hand in hand with their deranged priorities..
To understand why, one must first understand how the Constitution allocates power between Congress and the states. Congress’s authority is limited to an itemized list of powers contained in the text of the Constitution itself, whereas states have somewhat broader authority.
Even though Congress’s powers are not unlimited, they are still quite sweeping. One of Congress’s broadest powers, for example, is its power to spend money. Congress is free to spend money, so long as it does so to “provide for the common defense and general welfare of the United States.” For this reason, the provisions of health reform that create new subsidies or otherwise spend federal dollars are clearly constitutional. There is no question that a program designed to ensure that every American has affordable health coverage—no matter what their income or employment status—provides for the “general welfare” of this country.
To their credit, the 11 attorneys general do not appear to question this obvious truth. Their suits focus instead on the new law’s provisions that require individuals to carry health insurance—whether provided by a public program or an employer, or purchased on their own (with help from subsidies for low- and middle-income individuals)—and that fine employers who do not provide health insurance to their employees. The attorneys general claim that both provisions fall outside of Congress’s enumerated powers.
But the attorneys general are wrong. Article I of the Constitution empowers Congress “[t]o regulate commerce . . . among the several states.” The language of this “Commerce Clause” of the Constitution contains two elements. Congress must attempt to regulate “commerce” in order to invoke its commerce power, and this commerce must be “among the several states,” for example, multistate in nature. A requirement to carry health insurance passes both of these tests.
The Supreme Court has not handed down a concise definition of just what qualifies as “commerce,” but even ultraconservative Justice Antonin Scalia acknowledged in a case called Gonzales v. Raich that Congress has sweeping authority to regulate “economic activity” under the Commerce Clause. There is a long line of cases holding that Congress has broad power to enact laws that substantially affect prices, marketplaces, and commercial transactions, which support Justice Scalia’s conclusion. A law requiring all Americans to hold health insurance does all of these things.
The very same Gonzales v. Raich case establishes that Congress can regulate even tiny insurance providers who serve only a handful of local residents because such local activity substantially affects a multistate market. Raich held that a federal ban on medical marijuana should apply even to small-time growers who give their product away to local residents. Because small-time growers compete in a marketplace with major interstate dealers of marijuana, a local grower’s decision to offer free cannabis to a few patients influences the price of marijuana in the interstate marketplace, and this effect on interstate prices is enough to bring a local grower’s actions within the Commerce Clause’s umbrella.
Most of the attorneys general's rhetoric has been heavy on political grandstanding and light on actual legal arguments, but proponents of the attorneys general's viewpoint do cite two cases where the Supreme Court struck down a law for exceeding Congress’s commerce power. In United States v. Lopez, the Court struck down a law banning the simple act of bringing a firearm into a school zone. Five years later, the Court in United States v. Morrison struck down a portion of the Violence Against Women Act.
What these cases have in common is that the laws at issue involved activity that was far less economic in nature than the purchase of health insurance. Neither carrying a gun nor committing an act of violence involves a sale, a market, or an exchange of something of value. No employer hires workers simply to carry a gun into a schoolhouse, and there is little marketplace for cowardly acts of violence. In other words, Lopez and Morrison stand for the proposition that Congress’s power over noneconomic matters is far more limited than its power to enact laws with an economic impact.
Health Care Reform FAQ
The bill costs nearly $1 trillion in the first 10 years. How exactly does it reduce the deficit?More answers to FAQs at link.
First, it slows spending on Medicare and Medicaid by reducing the rates those programs pay for services such as hospital visits. (It also reduces the amounts paid out through the Medicare Advantage program.) Second, it introduces new taxes, including a 0.9 percent Medicare payroll tax hike for workers who make more than $200,000 a year (and couples who make more than $250,000 a year) and a 3.8 percent tax on unearned income for the same tax brackets. Both taxes will take effect in 2013. Lastly, the so-called "Cadillac" tax on relatively high-end employer-sponsored insurance plans will target individual plans that cost more than $10,200 every year and family plans that cost more than $27,500. (The "Cadillac" tax won't roll out until 2018.) The Congressional Budget Office estimates that, together, these measures will decrease spending and increase revenue enough to reduce the deficit by $143 billion over the first 10 years and more than $1 trillion in the second decade.
...What if I have federally subsidized insurance and need an abortion? Who pays for it?
You do. The compromise struck between the House and the Senate says that federal funds cannot be used to pay for abortions. So if the federal government fully subsidizes your plan, you have to pay out of pocket for abortions—except in cases of rape or incest. (This is the same arrangement for women covered by Medicaid.) Even if the government only partly subsidizes your insurance, you still have to pay for the portion of the insurance that covers abortion. Here's how it works: You write two separate checks to your insurance company every month—one to cover possible abortions, one for all other treatments and services. The federal government then contributes a third stream of money, which cannot be used to pay for abortions. Insurers that offer abortion coverage are required to keep those three pots of money separate. So any time someone gets an abortion, it's paid for from the account devoted exclusively to abortion coverage. (Pro-life advocates who claim that the health care bill subsidizes abortion argue that even if you keep the pots of money separate, the government is still contributing to plans that allow abortion.)
