The Constitution vs. health care reform

By Kevin Price

One of the few "funny" stories to come out of the sweeping health care legislation to go through Congress was that the majority who wanted reform — but did not want it applied to them — woke up finding themselves subject to those laws. They, too, will eventually find themselves burdened by the same burden of taxes, regulation, and rationed care that the rest of us will suffer. This was not the only thing they failed to notice, but also the fact that this bill is an easy target for attack in the courts.

Investor's Business Daily (IBD) notes that several parts of the law should simply not survive a constitutional challenge. Nancy Pelosi was the subject of many jokes when she essentially said, "we will not know what is in the bill until we vote on it." Many now wish they had looked a little closer at the fine print.

The first and most obvious place for the courts to focus on according to the IBD piece is "the individual mandate that requires those who aren't previously covered by insurance to buy a plan." The federal government has never had the power to require individuals to purchase something from a private or publicly owned company. Politicians lack a fundamental understanding of this principle. Recently I moderated a forum that featured the Democrat's nominee for Governor of Texas, Bill White and I asked him about his view of the President's health care reform and, in particular, the apparently unconstitutional mandate that individuals would have to buy something from a company. He, quipped, "like auto insurance?" Auto insurance has been a requirement for decades, but always on a state level. Even then the analogy is only true if someone wants to own and drive a car. The federal government's powers are different from the states as seen clearly in Article I of the Constitution. White is a graduate of Harvard and did his law degree at the University of Texas at Austin, he should know better, but like most in public policy today he is clueless when it comes to federalism. In spite of changes in the courts, I do not see this bill holding up.

Another area that is attracting attention on a constitutional level is the expansion of Medicaid, which forces states to increase spending on that program. Add the troubling facts that some states (such as Louisiana and Nebraska) received "sweetheart deals" that benefit their states at the expense of the rest of the nation.

The problem is, even if these provisions were struck down, the bulk of the law would remain intact, as will the burden that accompanies it. But that may not be the case, IBD notes, it quotes Greg Scandlen, a senior fellow at the Heartland Institute. Scandlen notes that "due to a little-known legal concept the entire law would unravel if a single part was found to be outside the Constitution." He goes on to state that "Apparently there was no 'severability' clause written into this law, which shows how amateurish the process was," he wrote. "Virtually every bill I've ever read includes a provision that if any part of the law is ruled unconstitutional the rest of the law will remain intact. Not this one. That will likely mean that the entire law will be thrown out if a part of it is found to violate the Constitution."

Although the legal community seems to be dismissing much hope that this bill will be overturned, it is clear that this legislation is walking on thin ice. With almost 3,000 pages and huge mistakes like those covered above, this bill is begging to have major changes or to be disregarded entirely. The case for "reform of the reform" is stronger now than ever.

© Kevin Price