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Saturday, January 2, 2010

The Constitution and Health Legislation

At various point in our book, we show how domestic policy debates usually end up in court and almost invaraibly raise issues of federalism.  Health legislation is a case in point. The constitutionality of the legislation is the topic of an article in The Wall Street Journal by Senator Orrin Hatch (R-Utah, J. Kenneth Blackwell, and Kenneth A. Klukowski.  They argue that it has at least three defects. 
  • Congress lacks constitutional authority to require individuals to buy health insurance;
  • The special favors to individual states fall afoul of the general welfare clause;
  • The requirement that states set up benefit exchanges "violates the letter, the spirit, and the interpretation of our federal-state form of government."
A story in the Washington Post presents a different point of view.
"All of these arguments don't work, but they're interesting to debate," said Jack M. Balkin, a constitutional law professor at Yale Law School. Defenders of the mandate point out that the Supreme Court has ruled Congress may regulate "activities that 'substantially affect' interstate commerce," and that individuals' purchasing (or not purchasing) health insurance clearly falls within that category. Besides, Balkin added, "It's a really easy argument to show that this is a tax designed to promote the general welfare. . . . The Commerce Clause issue is irrelevant."