Xeng Xiong / The Collegian
At Fresno State’s annual Constitution Day held at the Satellite Student Union Friday, a panel of professors held competing positions on the constitutionality of the universal health care legislation passed back in March.
The Patient Protection and Affordable Care Act (PPACA) will expand eligibility for Medicaid—government-subsidized health insurance for low income individuals and families—up to 133 percent of the federal poverty line starting in 2014 to help cover the 50 million American adults currently without health insurance. It will also set up state-based exchanges where qualified buyers can purchase private insurance with government subsidies.
The most controversial provision in the bill is the mandate requiring individuals, including students not covered by their employer or family’s plan, to purchase health insurance, which also goes into effect in 2014. Individuals must provide the Internal Revenue Service (IRS) proof of health insurance when filing their income tax, or be penalized up to $2,000 for a family of four, or 2.5 percent of your income.
Twenty-one states have already taken action against the landmark legislation, filing lawsuits on grounds that it exceeds the commerce powers of congress and betrays state sovereignty as articulated in the 10th Amendment of the Bill of Rights.
Moderator and Fresno State political science professor Jeffrey Cummins said that as a result of the 1986 legislation which required emergency rooms to accept all comers, the individual mandate is essential.
“Once you make that decision [to open up ER’s] it means you must also have universal coverage,” he said. “The reason is that in our current system you end up having to compensate for those who don’t have care.”
Cummins said there are two ways to provide universal health care: Either apply the individual mandate or a government-based, single-payer system as seen in many western European countries.
Political science professor Yishaiya Abosch, who teaches constitutional law at Fresno State, opposes the bill’s justification for the individual mandate as a means of regulating commerce. He cited recent supreme-court cases—U.S. v Lopez (1995) and U.S. v Morrison (2000)—which struck down federal provisions that violated the commerce clause stated in Article 1 Section 8 of the Constitution.
“At least carrying a gun to school, as in Lopez, or committing a violent crime against a woman, as in Morrison, are easily recognized as activities,” said Abosch. “Failure to purchase private insurance, which is the object of the health reform law’s mandate, is not an activity of any sort.”
San Joaquin College of Law Professor Jeffrey Purvis defended the constitutionality of the provision, saying that the subject of regulation in the bill is the purchase and sale of health insurance, which is a commercial transaction, and therefore within the confines of the commerce clause.
Purvis views some general objections to the individual mandate—that government cannot make you purchase something you do not want, or that one must be engaged in activity in order to be regulated—as not being principles of constitutional law.
“The nature of regulation is to compel you to do what you don’t want to do,” said Purvis. “When the federal government exercises its power of eminent domain, so long as it does so for a public purpose and gives you just compensation, even though you are just sitting there minding your own business, you must transfer your land to the ownership of the federal government. There is no legal principle that says you have to be voluntarily engaging in an activity to be regulated.”
Purvis cited aspects of the Bush administration’s Patriot Act, which received bipartisan support, as an infringement on civil liberties by the federal government that fled the constraints of the constitution.
After the event, Abosch told The Collegian that Bush’s policies reflected an overarching interest of national defense that should not be equated with health care, and some of these policies were struck down by the courts. He cited Obama’s continuation of many of Bush’s policies—rendition, not closing Guantanamo Bay prison, intercepting private telecommunications without warrants—being beyond reproach as examples of inconsistent, partisan views of constitutional law.
Partisan discourse on previous constitutional abuses has lent itself to obscuring and excusing further abuses from rigorous constitutional analysis.
“No matter how necessary or effective [a] law might be, or no matter how much time or political capital was spent in passing it, if the law is outside the scope of power the U.S.
constitution assigns national government, it must be declared unconstitutional and void,” Abosch said.
Abosch added that the argument supporting the constitutionality of the individual mandate stem from a “dangerously imbalanced interpretation of the Constitution.”
“They want privacy protections to be up here, but economic liberties down there,” he said. “That view assumes that certain individual rights in the areas of speech, religion, privacy and sexual forays are deserving of the law’s most rigorous protection, while others in the areas of property and commercial interaction can be freely infringed on almost any claim of social utility.”
Purvis told The Collegian he is aware that many constitutional scholars share Abosch’s view that this is not a correct ordering of these values, but that such a hierarchy has been well established by the courts.
“The Supreme Court has itself acknowledged that rights such as freedom of religion, speech and other fundamental interests are of greater constitutional weight than the economic interests of individuals,” Purvis said in an e-mail interview. “The constitution protects the former explicitly, and does not mention the latter.”
Abosch reiterated that states have powers that the federal government does not. California can mandate drivers to purchase auto insurance, just as Massachusetts can implement a universal health care plan and mandate their residents to purchase a qualifying health plan.
“I might object to a state mandate on policy grounds, but legally, the individual states are authorized to enact such legislation for their residents, assuming that voters approve and there is no obstacle in their constitution.”
This state sovereignty was well intentioned by the framers, said Abosch, because it provides diversity among states in the union; creates better policies since states are more intimately involved and accountable to their constituents; and allows failed experiments to be learned from by other states.
Last week Florida Federal Judge Roger Vinson indicated that he would deny the federal government’s request to dismiss state lawsuits against the bill, as reported by the New York Times, increasing the likelihood of it eventually being brought before the Supreme Court.
Typically in Supreme Court cases, Purvis said, a constitutional challenge would only kill the provisions being challenged, leaving the bill intact. But the impact of losing the individual mandate may leave the program, in effect, inoperative. It would create a major funding hole, and it is unclear as to how Democrats may seek to reconcile losing the individual mandate when implementing PPACA over the next four years.
“Democrats thought that this bill was so huge, that if they could just get it through Congress, there is no way the Supreme Court is going to overturn it,” Abosch said. “They really didn’t comprehend just how much opposition and backlash there might be.”