Conservatives Plan Legal Challenges to Stop Health Care Reform

January 3, 2010

(ChattahBox)—-Conservatives and their millions spent on anti-health care reform lobbying efforts and the GOP’s “death panel” lies have failed to stop the reform of our broken health care system. Reform bills successfully passed through both houses of Congress and will be merged in committee, after the holiday recess. But conservative opponents of the bill are setting their sights on a last ditch effort to derail reform in the courts, arguing that the individual mandate requiring Americans to purchase health insurance is unconstitutional. Democratic lawmakers and legal scholars say opponents of the bill don’t have a legal leg to stand on, but that isn’t about to stop them.

The Washington Post published a piece on Sunday neatly summarizing the legal arguments proposed by conservatives. The conservative Heritage Foundation published a legal memorandum in December as part of a seminar, basing its opposition to the individual mandate on a two-pronged argument that it violates the the Constitution’s Commerce Clause and exceeds the power of Congress to levy taxes. The argument advanced by the Heritage Foundation and Republican lawmakers, asserts that the failure to buy health insurance does not rise to the level of interstate commerce and that the penalties imposed for refusing to become insured, constitute an illegal tax levy by Congress.

Randy Barnett, a conservative professor of constitutional law at Georgetown University Law Center co-authored the Heritage Foundation’s anti-health reform memorandum, using the extreme argument that once Congress mandates health insurance purchases, the lawmaking body will go wild and order every American to buy a new Chevy Impala:

“If Congress can mandate this, they can mandate anything. Congress could require every American to buy a new Chevy Impala every year, or pay a ‘tax’ equivalent to its blue book value, because such purchases would stimulate commerce and repay government loans,” wrote Barnett.

Sen. Orrin Hatch (R-UT), a vocal proponent of the unconstitutional argument, was on hand at the Heritage Foundation’s event in December to provide the opening remarks, saying the personal mandate, which he calls the “job-killing” mandate is unconstitutional, because it violates personal liberty.

The co-author of the Senate’s health care bill, Finance Chairman Max Baucus (D-MT), dismissed assertions by Republicans that the bill is unconstitutional:

“We have looked at this question seriously and concluded that the penalty is constitutional. And those who study constitutional law as a line of work have drawn that same conclusion,” said Baucus.

And constitutional scholars, such as Erwin Chemerinsky, dean of the law school at the University of California at Irvine say the constitutional argument against an individual mandate isn’t even a close legal case. “Congress clearly has the legal authority to require individuals to have health insurance,” said Chemerinsky.

The Supreme Court has ruled that Congress may regulate “activities that ‘substantially affect’ interstate commerce,” and it’s clear that purchasing health insurance falls within the meaning and intent of the Commerce clause. Additionally, the mandate and the accompanying financial penalty easily passes muster under the generals powers of Congress to institute a tax designed to promote the general welfare, according to Jack M. Balkin, a constitutional law professor at Yale Law School.

Once the health care reform bill is enacted into law, lawmakers on both sides of the aisle expect to see test cases filed opposing the constitutionality of the bill’s individual mandate provision.

See the Washington Post for more.


Comments

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