Wednesday, December 15, 2010

Health Care Reform Constitututional ?


This is barely within the ambit of my blog and also is something that everybody else is going to be discussing, another reason for me to not weigh in, but I will anyway since my brief sampling on the commentary already out indicates that something might be missing.

Commonwealth of Virginia v. Sebelius is on the constitutionality of the portion of the health care bill that calls for a tax or penalty on someone who does not purchase health insurance :

First, the Commonwealth contends that the Minimum Essential Coverage Provision, and affiliated penalty, are beyond the outer limits of the Commerce Clause and associated Necessary and Proper Clause as measured by U.S. Supreme Court precedent. More specifically, the Commonwealth argues that requiring an otherwise unwilling individual to purchase a good or service from a private vendor is beyond the boundaries of congressional Commerce Clause power. The Commonwealth maintains that the failure, or refusal, of its citizens to elect to purchase health insurance is not economic activity historically subject to federal regulation under the Commerce Clause.

Alternatively, the Commonwealth contends that the Minimum Essential Coverage Provision cannot be sustained as a legitimate exercise of the congressional power of taxation under the General Welfare Clause. It argues that the Provision is mischaracterized as a tax and is, in actuality, a penalty untethered to an enumerated power. Congress may not, in the Commonwealth's view, exercise such power to impose a penalty for what amounts to passive inactivity.

Lastly, the Commonwealth asserts that Section 1501 is in direct conflict with the Virginia Health Care Freedom Act. Its Attorney General argues that the enactment of the Minimum Essential Coverage Provision is an unlawful exercise of police power, encroaches on the sovereignty of the Commonwealth, and offends the Tenth Amendment to the U.S. Constitution

The District Court for the Eastern District of Virginia agreed with the Commonwealth

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.

It did not, however, issue an injunction since nothing is really happening with this until 2013, which is why I wouldn't normally pay attention to it.  What I've seen missing from the comments on this is that two other courts have ruled that the act is constitutional:

LIBERTY UNIVERSITY, INC v. GEITHNER, Cite as 106 AFTR 2d 2010-7174, 11/30/2010

The conduct regulated by the individual coverage provision is also within the scope of Congress' powers under the Commerce Clause because it is rational to believe the failure to regulate the uninsured would undercut the Act's larger regulatory scheme for the interstate health care market

These guys also raised religious and free speech arguments all of which went nowhere.  This decision was the by the District Court for the Western Division of Virginia.

THOMAS MORE LAW CENTER v. OBAMA, ET AL., Cite as 106 AFTR 2d 2010-6720, 10/07/2010

In this case the court found that the insurance requirement was within the realm of the Commerce Clause.  I managed to find something amusing so I posted on that decision a while ago.  The Thomas More decision was by the Eastern District of Michigan.
There is also:

STATE OF FLORIDA v. U.S. DEPT. OF HEALTH & HUMAN SERVICES, Cite as 106 AFTR 2d 2010-6761, 10/14/2010

That suit withstood a motion to dismiss.  The latest I see on it is that it will be heard on December 16.

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