healthcare debate

Controversy has surrounded health care reform at least since the 2008 presidential elections, and it has not died down since President Obama signed the health care bill into law back in March. The Tea Party, perhaps the loudest opponent to this law, has consistently argued that Congress exceeded its constitutional power in passing the health care bill. These arguments have mostly focused on the individual mandate, which requires individuals to purchase health insurance by 2014 or pay a fine. Virginia Attorney General Ken Cuccinelli argues that this mandate is clearly beyond Congress’s power under the Commerce Clause, because failing to buy insurance is the absence of economic activity and cannot be regulated as commerce.

At least fifteen lawsuits have been filed against the health care law, including a suit filed in Florida by twenty states. Two federal courts, the Eastern District of Virginia and the Northern District of Florida, have already rejected requests by the Obama administration to dismiss these suits.

A federal judge in Virginia heard arguments today concerning the constitutionality of the Affordable Health Care Act, although no ruling has been issued yet. In July, Judge Hudson declined to dismiss the case as requested by the Justice Department, which argued that when a person who makes an economic decision not to purchase health care affects the health care market. Today, the burden shifts to Virginia, who seeks to convince the judge that failure to purchase insurance is not “commerce.”

The Northern District of Florida held that the states have standing to bring a challenge to this law, and a summary judgment hearing has been set for December 16, during which the parties will address the merits of the case. As the White House pointed out in its reaction to the Florida ruling, the Eastern District of Michigan recently ruled on the merits of a challenge to the Affordable Health Care Act, finding that it was constitutional.

Virginia and other opponents of the health care law, have an uphill battle convincing courts that this law is outside Congress’s power under the Commerce Clause, which has been interpreted extremely broadly since NLRB v. Jones in 1937. In an interview with The Washington Examiner, Virginia Attorney General Cuccinelli cited an 18th century case that held that King George III could not force British subjects living in America to buy British goods. Of course, there are obvious differences between forcing people to buy goods from a particular source and forcing people to purchase a good. At the same time, Judge Vinson of the Northern District of Florida pointed out that this exercise of power of the individual mandate is “simply without prior precedent.”

Commentators agree that this issue will likely reach the Supreme Court, especially given its widespread impact and the controversy surrounding it. The result of this case may threaten the effectiveness of the Affordable Health Care Act, as some have wondered whether the law will achieve its goals without the individual mandate. On the other hand, a favorable outcome for proponents of the Health Care Act may further expand Congress’s power under the Commerce Clause, which has implications for legislation beyond the issue of health care.

It will be interesting to watch these cases unfold, regardless of which side of the issue you may be on.

Theresa Weisenberger

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