A brisk constitutional

In the end the U.S. Supreme Court will decide the constitutionality of the health care law, and the key question is whether the Commerce Clause gives Congress the authority to require citizens to buy health insurance. Many pundits expect it to be a 5-4 decision, with Justice Anthony Kennedy the swing vote whichever way the high court rules. So far, the issue has reached only the federal district court level, where four different judges — despite considering the same precedents and body of law — have rendered a split decision, with two ruling it's constitutional and two saying it's not. The most recent decision came last week in Pensacola. Here are excerpts from each ruling. Pensacola: NAY, Jan. 31, 2011

U.S. District Judge Roger Vinson

Appointed by President Ronald Reagan

It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting — as was done in the Act — that compelling the actual transaction is itself "commercial and economic in nature, and substantially affects interstate commerce," it is not hyperbolizing to suggest that Congress could do almost anything it wanted. It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be "difficult to perceive any limitation on federal power," and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended.

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His ruling is the most sweeping, saying that the entire health care reform act must fall because the individual mandate is unconstitutional.

In the final analysis, this Act has been analogized to a finely crafted watch, and that seems to fit. It has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed. It cannot function as originally designed. There are simply too many moving parts in the Act and too many provisions dependent (directly and indirectly) on the individual mandate and other health insurance provisions — which, as noted, were the chief engines that drove the entire legislative effort — for me to try and dissect out the proper from the improper, and the able-to-stand-alone from the unable-to-stand-alone. Such a quasi-legislative undertaking would be particularly inappropriate in light of the fact that any statute that might conceivably be left over after this analysis is complete would plainly not serve Congress' main purpose and primary objective in passing the Act. ... The Act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker (Congress).

Read the full opinion at tinyurl.com/4wg3lsx

Lynchburg, Va.: YEA, Nov. 30, 2010

U.S. District Judge Norman K. Moon

Appointed by President Bill Clinton

I hold that there is a rational basis for Congress to conclude that individuals' decisions about how and when to pay for health care are activities that in the aggregate substantially affect the interstate health care market. ...

Regardless of whether one relies on an insurance policy, one's savings, or the backstop of free or reduced-cost emergency room services, one has made a choice regarding the method of payment for the health care services one expects to receive. Far from "inactivity," by choosing to forgo insurance, plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance. As Congress found, the total incidence of these economic decisions has a substantial impact on the national market for health care by collectively shifting billions of dollars on to other market participants and driving up the prices of insurance policies.

Read the full opinion at tinyurl.com/39a2zx9

Richmond, Va.: NAY, Dec. 13, 2010

U.S. District Judge Henry Hudson

Appointed by President George W. Bush

A thorough survey of pertinent constitutional case law has yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person's decision not to purchase a product, notwithstanding its effect on interstate commerce or role in a global regulatory scheme. The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision would invite unbridled exercise of federal police powers. At its core, this dispute is not simply about regulating the business of insurance — or crafting a scheme of universal health insurance coverage — it's about an individual's right to choose to participate.

Article I, Section 8 of the Constitution confers upon Congress only discrete enumerated governmental powers. 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.

On careful review, this Court must conclude that Section 1501 of the Patient Protection and Affordable Care Act — specifically the Minimum Essential Coverage Provision — exceeds the constitutional boundaries of congressional power.

Read the full opinion at tinyurl.com/2enmwuw

Detroit: YEA, Oct. 7 , 2010

U.S. District Judge George C. Steeh

Appointed by President Bill Clinton

There is a rational basis to conclude that, in the aggregate, decisions to forgo insurance coverage in preference to attempting to pay for health care out of pocket drive up the cost of insurance. The costs of caring for the uninsured who prove unable to pay are shifted to health care providers, to the insured population in the form of higher premiums, to governments and to taxpayers. The decision whether to purchase insurance, or to attempt to pay for health care out of pocket, is plainly economic. These decisions, viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers, and the insured population who ultimately pay for the care provided to those who go without insurance. These are the economic effects addressed by Congress in enacting the Act and the minimum coverage provision.

The health care market is unlike other markets. No one can guarantee his or her health, or ensure that he or she will never participate in the health care market. Indeed, the opposite is nearly always true. The question is how participants in the health care market pay for medical expenses — through insurance, or through an attempt to pay out of pocket with a backstop of uncompensated care funded by third parties. This phenomenon of cost-shifting is what makes the health care market unique. Far from "inactivity," by choosing to forgo insurance, plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now through the purchase of insurance, collectively shifting billions of dollars, $43 billion in 2008, onto other market participants. As this cost-shifting is exactly what the Health Care Reform Act was enacted to address, there is no need for metaphysical gymnastics. ...

Read the full opinion at tinyurl.com/2fjcm83

A brisk constitutional 02/05/11 [Last modified: Saturday, February 5, 2011 3:30am]

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