Wednesday, March 31, 2010

**UPDATED** Top 5 Reasons Why Health Care Reform Will Likely Be Upheld By The SCOTUS

Yesterday, two historic events took place. First, President Obama signed into law the "Patient Protection and Affordable Care Act of 2010," otherwise known as Health Care Reform.  Second, no sooner than his last pen left the paper, 15 Attorneys General from various states (Alabama, Colorado, Florida, Idaho, Louisiana, Michigan, Nebraska, North Dakota, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Virginia and Washington) all filed law suits attacking the Constitutionality of the law.  Now I know what many of you are probably thinking...this is just another desperate right-wing attack in a long line of desperate right-wing attacks to kill Health Care Reform. But hold up! Not so fast.  As it turns out, ladies and gentlemen, this is not just another empty right-wing talking point (not to mention, one of the AG's, James Caldwell from Louisiana, is not a right-winger at all - he's actually a Democrat). There's actually a legitimate argument here this time which is this: the "mandate" starting in 2014 that forces people to either buy heath care or face a fine is unconstitutional because Congress cannot force people, or make the states force people, to actually do something.  A valid argument to be sure. Nevertheless, despite this meritorious argument against the 2014 health care mandate, there are 5 reasons why this argument will lose if this issue ever makes its way to the Supreme Court. I'll break them down in the most NON-legal speak possible after the jump:

#5 - The Attorney General Arguments Are Based On The Commerce Clause
You're going to hear this term a lot over the next few months as the uninformed media tries to learn about the Constitution.  The "Commerce Clause" is simply a clause in the Constitution that gives Congress the power to regulate anything and everything dealing with interstate commerce.  And when I say anything, I mean anything. For example, using the Commerce Clause, Congress could not only regulate a company that ships widgets between state lines, but it can also regulate anything connected to that company's interstate activity, such as the machinery used in the company's plant, the trucks it uses, the highways those trucks drive over, the phone lines and internet connections it uses to do business, etc.  As you can see, it's a very BROAD power.  In fact the power is so broad, many people say it basically gives Congress a "police power."  Whether you agree with that interpretation or not, the bottom line is this - since the beginning of this country, the Supreme Court has given Congress a VIP pass on pretty much anything they do whenever they use the Commerce Clause.  In fact, the Supreme Court made history in 1995 and again in 2000 when, for the first time in almost a century, it actually said "no dice" to laws made by Congress using the Commerce Clause.   (see U.S. v. Lopez, 514 U.S. 549 (1995); see also U.S. v. Morrison, 529 U.S. 598 (2000)).  So the moral of the story is, in order for the Supreme Court to side with the Attorneys General here, they're going to have to break away from centuries of well settled law (which could happen, but not likely, even with this John Roberts Court).
#4 - Commerce Clause Gives Congress the Power to Penalize People Even When States Object
In a rather ironic twist of fate, the Republicans unwittingly shot themselves in the foot back in 2005 when George Bush's Attorney General, John Ashcroft, filed Ashcroft v. Raich (later changed to Gonzales v. Raich when Alberto Gonzales took over after Ashcroft stepped down) which was a case where the Federal Government came into California and told the citizens there that they could not smoke weed even for medicinal purposes.  Although on the surface, the case was about smoking that dank, what it was REALLY about was the Federal Government trumping the State Government by using the Commerce Clause.  In that case, the Feds won.  Fast forward to today, now a gang of Republican  STATE Attorneys General want to try to fight the Feds using the very same Commerce Clause that Bush's FEDERAL Attorney General used to beat their asses 5 years ago.  Like Bobby Fisher once said "you've already lost, you just don't know it yet."

#3 - People Using ER's For Primary Care Have An Effect On Insterstate-Commerce
Getting down to the heart of the matter, the main argument being raised against the 2014 mandate is that it unfairly takes John Q. Taxpayer who is sitting at home, minding his own business as an uninsured American, and forces him to do something (buy health insurance) in the name of interstate commerce when he himself may not have had a damn thing to do with the interstate commerce of health care.  A strong argument.  However, unfortunatley for our friend John Q., the aggregate effect of himself plus his neighbors does have something to do with the interstate commerce of health care.  And as the Supreme Court ruled back in 1942 in the landmark case Wickard v. Filburn, if anything, taken in the aggregate, has an effect on insterstate commerce (such as people checking into the ER b/c they don't have health insurance for example), Congress has a right to regulate that activity as they see fit...even if the activity  itself doesn't even physically go between state lines! Sorry dude. Bummer.

#2 - Congress Has The Power to Tax
This one should go without saying.  How many times have you wondered who the hell "FICA" is? (when I first started working as a kid, for years I was looking for that cat to give him a piece of my mind)  Well FICA, Social Security, Medicaid, etc. are all examples of the ability of the Federal Government to reach into your pocket.  It may seem like semantics, but there is an important difference between saying the word "fine" and saying the word "tax."  If the Feds argue that this thing is a "tax" (and why wouldn't they?) then the Supreme Court will likely have their back like the people with the Verizon Man.

#1 - There's No Standing...Yet
In order to bring a constitutional claim into federal court, you have to have this little thing called "standing."  Standing means that you have actually been injured in some way (physically, economically, whatever) or you are about to face an "imminent" injury (imminent as in soon, like tomorrow).  Also, third-party standing is not allowed, meaning you can't file about somebody else's beef that doesn't effect you personally.  The 2014 mandate doesn't kick in until...well...2014.  That's 4 years from now.  Nobody has been forced to do anything yet, and many changes and amendments may or may not be adopted or repealed within the next 4 years to make this a moot issue.  So more than likley, the Supreme Court can't even hear this issue yet.

So, for the sake of argument, what happens if the new Health Care law makes its way all the way up the Supreme Court tomorrow and they rule against it.  Does that kill health care reform? 
No.  The ruling would only effect the Constitutionality of the 2014 mandate, so only that section would be removed from the law.  Whenever a provision of a statute or law is found unconstitutional, the Supreme Court only cuts out the "bad piece" and it leaves the rest.  Therefore,  in this case, the mandate would get knocked out but the rest of the entire health care reform law would be left in tact as is.

The University of Washington School of Law recently held a debate to discuss the constitutionality of the 2014 mandate in the new health care law.  The law school tried to find law professors to argue both sides of this issue but could not find any constitutional law professors who could make the argument that the law is unconstitutional.  From the Seattle Times:

The University of Washington billed it as a debate among distinguished law faculty over whether the new federal health-care law is constitutional.
But while the four panelists at a packed event Tuesday may have differed on some of the finer points, they all agreed on the big question: They said the new law passes constitutional muster and that various lawsuits arguing the opposite — including the one joined last week by state Attorney General Rob McKenna — have little merit or chance of success.
Even John McKay, the former Republican U.S. attorney for Western Washington (who was forced out in 2006 under contentious circumstances) said that while he sympathized with some of the political issues in play, he thought the lawsuits lacked merit. In fact, he questioned the timing and thrust of the cases: "One way to say it is, that this has to be seen as a political exercise," he said.
Moderator Hugh Spitzer noted the lack of a vigorous dissenting voice.
"I will say that we tried very hard to get a professor who could come and who thinks this is flat-out unconstitutional," he said. "But there are relatively few of them, and they are in great demand."Spitzer, an expert in state constitutional law and a UW affiliate professor, said afterward that organizers even considered setting up some kind of video conference to provide the counter perspective. But in the end, he said, the lack of professors taking that position spoke to the merits of the arguments...Jay said that when it comes to the first argument, the federal government has "the power to tax and spend" and the ability to regulate interstate commerce — adding that health care, which makes up one-sixth of the economy, undoubtedly constitutes vital commerce.

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