Tuesday, August 23, 2011

Patient Protection and Affordable Care Act of 2010 (Obamacare); Constitutional?

Is the Patient Protection and Affordable Care Act of 2010, aka ObamaCare, constitutional?

Here's one very specific constitutional question ruled upon recently by the Atlanta based U.S. Court of Appeals: Can Congress compel Americans to buy and maintain health insurance? The appeals court answered no.

That straightforward "individual mandate" question, perhaps among others, is what is likely to be ultimately decided by the Supreme Court.

How are we to know whether the various provisions of the health care law are going to be upheld or struck down by the Supreme Court? First, we look to the Constitution.

The Constitution is the "supreme Law of the Land" as specified in Article VI, Section 2. As such, the interpretation of its provisions will be dispositive with respect to the constitutionality of the national health care legislation enacted in 2010.

But who decides what the Constitution means with respect to whether the actions of the Congress in enacting the health care law will pass constitutional muster? The Supreme Court decides on matters of constitutionality. That authority was clearly spelled out long ago in the case of Marbury vs. Madison in 1803 and is known as the doctrine of judicial review.

Now that it's clear that the current ObamaCare case and the constitutionality thereof is likely to be decided by the Supreme Court, what constitutional language is relevant to the case at hand? The relevant language is found in Article I, Section 8 and grants Congress the power regarding "regulating commerce .... among the several States". The court's interpretation of these six words as applied to the health care law will determine that law's constitutionality.

Hence, the issue to be decided is simply this: do those six words empower Congress to require Americans to buy health insurance as part of its authority to regulate interstate commerce?

Or is that power to decide whether to buy or not to buy health insurance beyond the powers belonging to the federal government? Does it instead reside within the states or the people as provided in the Tenth Amendment?

During the past 223 years the U.S. Constitution has been a much analyzed and interpreted document. It stands as the longest standing written Constitution in the world today. As such, its basic contents are worth knowing.

The recent decision by the U.S. Court of Appeals in Atlanta (ObamaCare's Latest Judicial Defeat) rejected the constitutionality of the "individual mandate" provision of the new national health care law. The case will almost certainly be appealed to the Supreme Court for a final decision.

In addition to ObamaCare's importance to Americans generally, the court case has all the necessary ingredients for a good lesson in both constitutional law and the workings of government.

As in any judicial dispute, there are differing points of view which will be argued by the respective parties, fully considered and then decided by the nation's Supreme Court. In brief, these are the basic competing arguments.

(1) The lawyers on the side representing 26 states argue that Congress does not have the power to force people to buy insurance. In part, they argue, "In fact, the individual insurance mandate does not regulate commerce. It imposes a freestanding obligation that must be satisfied regardless of whether one is engaged in commerce." Thus, they argue the law is unconstitutional. The U.S. Court of Appeals in Atlanta agreed.

(2) Government lawyers on the other side take the position that Congress does indeed have such authority and that "the failure to have congressionally prescribed insurance is the result of an "economic decision" (whether or not to purchase the required insurance). Accordingly, Congress can regulate that decision making by individuals because such "economic" decisions affect commerce." The Atlanta court disagreed.

Now the Supreme Court will decide, assuming it takes the case, and I believe it will. But whether the Supreme Court will render its decision prior to or after the 2012 presidential election is very much an open question. That's for them to decide.

Before looking at the actual case more closely, let's first review some relevant background.

We have had a constitutional form of government since the Constitution's ratification in 1788. The Constitution followed the Articles of Confederation which were in effect from 1781-1788.

Our constitutional system of government provides for a national government and fifty state governments as well. 51 sovereigns in all.

Because the Founding Fathers embraced a system of popular sovereignty (We the People), all governmental power flows from the people. The Tenth Amendment provides that any legislative power which isn't delegated to the national government (aka enumerated or express powers) in Article I is either "reserved" to the various states or to the people, respectively.

Thus, if the power is not given to the legislature, it's reserved to, or retained by, the states or the people.

To repeat, one such express or enumerated power delegated or granted to the legislative branch involves the regulation of interstate commerce. Article I, section 8 gives the Congress the power to regulate interstate commerce.

In another place, the Tenth Amendment states in its entirety, "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."

Thus, unless the power is granted to the national legislature, it's retained by either the states or the people. Period.

The Constitution also separates the powers of the three distinct branches of government and provides checks and balances between those branches as well. While the legislative, executive and judicial departments are each independent, their various powers are checked by the other departments.

Now let's put this all together.

Congress enacted a health care law of historic proportions in 2010, and the President signed it into law. Both believed its passage to be within the constitutional powers of Congress.

However, at least 26 states believe the entire law, or portions thereof, is not among the legitimate powers granted by the people to Congress in the Constitution. These states are now challenging the constitutionality of ObamaCare in the federal courts.

Using the very same document that has been the supreme Law of the Land since 1788, we will get a decision by the third branch of government, the judicial branch, as to who's right about the new health care law and its enforceability. Congress and the President, or the states and the people.

The national government and many individual states are on different sides of this dispute. In the end, the Supreme Court will provide the answer. (Thereafter, of course, the legislative branch could choose to enact further legislation, but let's stay with the present situation today.)

{There is a fundamental economic aspect to this individual mandate provision, too. To add even more complexity to the case, without the individual mandate, the economics of affordability would be difficult, to say the least. In that instance, the new health care finances would hardly be "affordable", due to adverse selection. That is, if people elect not to buy insurance unless and until they get sick, premiums collected from those covered will be considerably less than otherwise. Without receiving those ongoing premiums from the healthy young who are mandated to buy whether they want to or not, the total costs of ObamaCare will likely be much higher than predicted when the law was passed.}

In the end, the Supreme Court will ultimately rule. Let's all hope that in the future the Congress is more careful about using the "commerce clause" to do whatever it wishes with respect to usurping both the constitutionally protected rights of individuals and the various states as well.

For now, the decision by the Atlanta based U.S. Court of Appeals is a victory for those believing that the enumerated powers provision of Article I, Section 8 still stand for something, and that the Tenth Amendment does as well.

And in any event, this is a good lesson in how our governmental powers are granted, restricted and adjudicated, all in accordance with a 223 year old document, as interpreted from time to time.

Thanks. Bob.

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