The Constitution should rule

By Walt Braun

The United States Supreme Court will take up the issue next week of the constitutionality of the 2009 Patient Protection and Affordable Care Act, the health care reform measure colloquially known as Obamacare.

The Court has scheduled hours of testimony and discussion over several days, presumably leading up to a June ruling on the controversial law. Most commonly at issue are two of the law’s aspects. The first is the individual mandate, the requirement that everybody purchase insurance by 2014. The second is the requirement that states expand their Medicaid programs to cover families earning up to $30,000 a year. Lawyers for 26 states that brought the case are expected to argue that such a requirement violates the Tenth Amendment’s protection of states’ rights.

If they follow public argument to date, the measure’s backers will lay out a need-based rationale for the law along the lines presented recently by Rep. Lynn Woolsey, a California Democrat and one of the law’s staunchest proponents. Woolsey asserted that 2.5 million young adults have already gained health coverage thanks to the provision that allows them to stay on their parents’ plans until age 26. She argued that 3.6 million seniors saved a total of $2.1 billion on pharmaceutical costs last year via closing of the “donut hole” coverage gap written into the 2003 Medicare Part D prescription drug bill. She also noted that owners of small businesses facing fast-rising health care costs now qualify for several tax breaks that allow them to insure their employees while staying competitive. Finally, Woolsey argued that finding the individual mandate unconstitutional would add millions of people onto the uninsured roles while not reducing the cost to those continuing to have coverage.

At the end of the day, the question for the Court is not whether the law is a relative good but whether it is constitutional. If it is, then the will of the people, as determined through their elected representatives, must prevail. If not, then it should be overturned out of simple respect for the Constitution itself.

On that question, scholars have to date differed. The law’s opponents have contended that the individual mandate creates a purchase requirement that is a simple infringement on individual liberty. If, they argue, the government can compel the purchase of a product, then what choices remain the province of the person? Their argument on the Medicaid mandate is an infringement by the feds upon state discretion.

Proponents find justification for the individual mandate in various precedents related to the Constitution’s Commerce clause, which empowers the federal government to regulate commercial activity between and among the various states. Whether the commerce clause is sufficiently elastic to compel, as well as regulate, commercial activity is likely to be a pivotal question.

The court’s decision will be widely looked forward to, and not only for its practical and political implications. The two questions to be decided – the ability of the government to compel individual commerce and the relevance of the 10th Amendment to modern government — both have profound implications for our system of government.

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