If you haven’t been living under a rock for the past month, you’re probably aware that the U.S. Senate recently passed a healthcare reform bill. The bill’s key provisions include barring insurers from refusing or dropping coverage based on a pre-existing medical condition, requiring individuals to purchase health insurance, or face a fine, expanding Medicaid eligibility and providing subsidies for those who cannot afford it, creating health insurance exchanges, designed to create a low-cost option for health insurance.
All of these provisions have been extremely controversial, with supporters arguing that it will reduce costs of health insurance, and make coverage available to millions of Americans who are currently uninsured, and that a healthier population will, in the long run, have economic benefits which more than offset the initial costs.
Opponents argue that the plan will necessitate tax increases, create too much government involvement in highly personal medical decisions, reduce the overall quality of care, and do little, if anything, to control rising costs of health care.
Another argument that has recently gained traction among the mainstream opponents of the healthcare reform bill is that certain provisions are unconstitutional.
Initially, the constitutional argument focused on the “individual mandate” – the requirement that everyone obtain health insurance. The constitutional argument stems from the fact that the federal government has constitutionally-limited power. Basically, Congress can only do that which the constitution specifically authorizes it to do. Of course, one could look at the mind-bogglingly enormous body of federal law, and look for corresponding explicit grants of authority in the constitution, and, in the vast majority of instances, find none. This is because the U.S. Supreme Court has interpreted certain congressional powers extremely broadly.
Most relevant here is the so-called “commerce clause”, which allows Congress to regulate commerce between the states, and with foreign countries. In the past several decades, the Supreme Court has greatly broadened the meaning of the Commerce Clause to cover virtually any activity that affects interstate commerce. For example, in one case, Wickard v. Filburn (1942), the Supreme Court ruled that the commerce clause allowed the federal government to prohibit an individual from growing wheat in his backyard, because, by growing wheat instead of buying it, he affected the market price of wheat, which was a matter of concern across the country, thus allowing Congress to regulate his conduct under the commerce clause.
That precedent has not been overturned, and has in fact been reaffirmed as recently as 2005, when, in the case of Gonzales v. Raich, the Supreme Court used roughly the same reasoning to uphold the federal ban on growing marijuana.
A good case could be made that, based on current precedent,
the individual mandate is constitutional. On the other hand some prominent
legal scholars would beg to differ, arguing that the delivery of medical
services occurs in one place, and does not cross state lines. Of course, this
argument appears to ignore the case of Katzenbach v. McClung, which raised the question of the
constitutionality of the 1964 Civil Rights act, which, among many other things,
prohibited racial discrimination in places of public accommodation. In that
case, the owner of a take-out restaurant required African American customers to
be served at a separate entrance from white customers, which was prohibited
under the Civil Rights Act. The owner argued that the Act was unconstitutional
as applied to his restaurant, because the provision of food to individual
customers occurred in a single location, and did not cross state lines. The
Supreme Court disagreed, because the owner bought food and supplies in
interstate commerce, his restaurant could be regulated by the federal
government.
Similarly, even
though medical services are delivered in a discrete location, the medical
supplies and other goods directly involved in the provision of medical services
were likely purchased from other states, and thus medical service providers are
engaged in interstate commerce, allowing them to be regulated.
Of course, I don’t
pretend to know how a court would eventually rule on this matter, but I know
how I’d answer a constitutional law exam question that involved these facts.
Another
constitutional question is raised by a last-minute compromise that was reached
to give senate Democrats the crucial 60-vote supermajority they needed to
overcome a Republican filibuster. Because the Republicans have 40 seats in the
Senate, and the Democrats (and independents who caucus with them) have 60
seats, and Republicans were unanimously opposed to the Senate bill, every single
Democratic vote was needed, effectively giving every Democrat in the Senate
veto power over the bill.
Nebraska Senator Ben
Nelson, a Democrat who appears to occupy the more conservative wing of his
party, had serious reservations, and threatened to vote against cloture (ending
debate, and forcing a vote on the bill, which requires 60 votes), which would
have effectively torpedoed the measure.
To appease him, greater restrictions were placed on funding
for abortion (ostensibly his main issue with the bill), and a provision was
added under which the federal government would pay all of
This does not raise any obvious Commerce Clause issues, but implicates Congress’ constitutional power to tax and spend for virtually any purpose.
Congress certainly treats states differently from one another all the time, when it comes to distributing money. On its face, this provision does not seem to be any different.
Whatever the final result, we can be sure that lawyers will be kept busy. Between the likely constitutional challenges to the law, and the myriad new regulations it creates, lawyers for individuals, health insurance companies, and employers will have their work cut out for them.
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