Heath Care Reform is Constitutional

David Streeter — October 23, 2009 – 10:14 am | Domestic Policy | GOP Hypocrisies | Health Care Comments (0) Add a comment

Ever since President Barack Obama’s health care reform plan was announced, critics have attempted to shoot down by declaring it unconstitutional. Opponents of the bill claim that the bill infringes upon the tenth amendment, which reads:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Dr. Erwin Chemerinsky, University of California-Irvine Law School Dean, takes issue with the tenth amendment defense in his recent piece in Politico. Chemerinsky writes:

Some who object to the health care proposals claim that they are beyond the scope of congressional powers. Specifically, they argue that Congress lacks the authority to compel people to purchase health insurance or pay a tax or a fine. Congress clearly could do this under its power pursuant to Article I, Section 8 of the Constitution to regulate commerce among the states. The Supreme Court has held that this includes authority to regulate activities that have a substantial effect on interstate commerce. In the area of economic activities, “substantial effect” can be found based on the cumulative impact of the activity across the country.

The tenth amendment defense seems to be nothing more than a superficial interpretation of the Constitution that ignores over 200 years of jurisprudence supporting the legislative powers granted in the commerce clause (Article I Section 8). It has been used unsuccessfully to defend “issues of states rights” such as racial segregation (overturned by Brown v. Board of Education and reasserted by Heart of Atlanta Motel v. United States). Using the tenth amendment to repel health care reform seems to be, at best, a mistake and, at worst, a demonstration of flawed constitutional scholarship. Given the tenth amendment’s failure to stand up to policies fulfilling the government’s role of promoting the nation’s “general welfare”, it is probably best for opponents of health care reform to find another defense.

Additionally, the Heart of Atlanta Motel decision is viewed by the Supreme Court’s majority decision as a clear-cut case demonstrating that the government has the authority to breach a state’s right on an issue related to commerce. With health insurance and the health care industry comprising at least 17% of America’s GDP, there can be little argument that the industry is not covered under the commerce clause. Furthermore, Republicans want to there to be an interstate health insurance exchange, which Obama supports as a way to control costs. On this issue the Republicans can have their cake and eat it too. But it appears that they would rather go hungry and continue their opposition to Obama’s plan.

Chemerinsky goes one-step further and takes issues with those who are promoting the idea that an individual insurance mandate infringes upon individual liberties.

Nor is there any basis for arguing that an insurance requirement violates individual liberties. No constitutionally protected freedom is infringed. There is no right to not have insurance. Most states now require automobile insurance as a condition for driving. Since the 19th century, the Supreme Court has consistently held that a tax cannot be challenged as an impermissible take of private property for public use without just compensation. All taxes are a taking of private property for public use, but no tax has ever been invalidated on that basis.

Once again, Chemerinsky uses a sophisticated analysis of American jurisprudence rather than a bumper sticker slogan to counter right wing claims and paranoia. Chemerinsky concludes with:

Those who object to the health care proposals on constitutional grounds are making an argument that has no basis in the law. They are invoking the rhetorical power of the Constitution to support their opposition to health care reform, but the law is clear that Congress constitutionally has the power to do so. There is much to argue about in the debate over health care reform, but constitutionality is not among the hard questions to consider.

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