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September 15th, 2011

Obama Health Law Raises Important Constitutional Issues

Contrary to the headlines, the 4th Circuit Federal Court of Appeals did not “uphold” the constitutionality of the Obama health law’s mandatory insurance provision last week. The court dismissed the Virginia challenge for technical reasons but made a point of saying that the health law raises important constitutional questions that should be decided by the court on another day.

“The significance of the questions at issue here only heightens the importance of waiting for an appropriate case to reach the merits. This is not such a case,” wrote Judge Diana Motz on behalf of the unanimous three-judge panel.

Motz explained that states can sue the federal government when a federal law or action impinges on the ability of a state to exercise its police powers, enforce its regulations or administer a state program.

In the opinion of the judges, the Virginia Healthcare Freedom Act, enacted a day after the President signed the Affordable Care Act in 2010, technically failed to provide an adequate conflict with federal law. Therefore Virginia had no “standing to sue.” Most interesting was Motz’s brief mention of what issues might be key in challenging the individual mandate. She pointed to the claim made by the Obama lawyers regarding consumers’ “inevitable participation in the health-care market.”

It was this false claim that largely brought down the federal government’s case when the 11th Circuit Court of Appeals ruled last month in favor of 26 states and other litigants challenging the constitutionality of the health law. In a 304 page opinion, the bipartisan panel of judges eviscerated the mandatory insurance requirement. The Obama administrationattorneys had claimed that all Americans “inevitably” and “universally” consume health care and are therefore participants in health-care commerce. For this reason, they argued, Congress can exercise its Commerce Clause power to compel everyone to pay for their care via insurance.

Untrue, said Judges Frank Hull and Joel Dubina, pointing to the skewed nature of health consumption. Many people need no health care.

Indeed, “Half of the population spends little or nothing on health care,” according to a 2006 report released by the federal Agency for Healthcare Research and Quality. Compelling people who need little or no health care to purchase extensive, costly coverage is like forcing everyone to buy flood insurance, even people who live on top of a hill.

In that 11th Circuit ruling, the judges also gutted the Obama administration’s fictional claim that compulsory insurance will eliminate “free riders.” Pointing to copious statistics, the judges stated that “free riders” are largely either illegal immigrants who will be exempt from the insurance mandate or people with low incomes, who will be covered under Medicaidrather than forced to buy a health plan. Compulsory insurance will have little impact on the free-rider problem.

The 4th Circuit judges never got to these issues of substance, instead ruling that Virginia lacked standing to challenge the law. Virginia Attorney General Ken Cuccinelli lamented the ruling and vowed to appeal. Cuccinelli said, “In rejecting Virginia’s right to bring the action, the court said that allowing such suits would allow the states to serve as ‘roving constitutional watchdogs.’ This was exactly a role that the Founding Fathers planned for the states to have. As James Madison wrote, under the Constitution, ‘The power surrendered by the people is first divided between two distinct governments. Hence a double security arises to the rights of the people. The different governments \[states and federal\] will control each other.’ “

Cuccinelli pointed out, “Health, safety and welfare issues have long been recognized as being part of the powers reserved to the states by the Constitution.”

The next stop is the U.S. Supreme Court, with a constitutional showdown likely before the 2012 presidential election.

Let’s hope the preservation of checks and balances between the federal government and the states is foremost in the minds of the justices. Precedent supports limiting the role of the federal government in matters of medical care and health insurance. For example, in 2006, in Gonzalez v. Oregon, the high court ruled against an effort by the federal government to dictate what is “legitimate” medical care. Such intrusion, the court said, “would effect a radical shift of authority from the states to the federal government to define general standards of medical practice in every locality.” That is what the Obama health law does.

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About the Author

Betsy McCaughey
Betsy McCaughey, Ph.D., is a patient advocate and former Lt. Governor of New York State. She is a regular contributor to

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