The National Catholic Review
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Even as Congress struggled to hash out its health care reform bill, the last step before President Obama signs it into law, opponents rolled out yet another plan designed to kill the reform. Their weapon is to challenge through the courts the legality of the proposed federal mandate requiring individuals and employers to buy health insurance and states to set up health insurance exchanges. That mandate, opponents allege, violates personal liberty and states’ rights, and it cedes to Congress powers not granted in the Constitution.

Lawyers and scholars on both sides agree that Congress has the authority to tax, spend, regulate interstate commerce and promote the general welfare. But they differ on their interpretations of these powers and how they work.

Regarding the health care bill, opponents argue that while Congress can spend federal money, it cannot require individuals to spend their personal money for a specific purpose, like health insurance. Nor, they claim, can Congress force the states to spend state money on insurance exchanges or other particulars without violating states’ rights. Senator Orrin G. Hatch co-authored an op-ed article in The Wall Street Journal (1/2) that cited as legal precedents for such views two U.S. Supreme Court cases. The arguments and strategies have been worked out by conservative organizations like the Goldwater Institute in Phoenix and the Heritage Foundation in Washington, D.C.

Other legal scholars disagree. They find the federal mandate consistent with existing Congressional powers laid out in the Constitution, like the power to tax and to promote the general welfare. In a posting about the Senate health care bill on his blog on Jan. 2, the Yale Law School professor Jack M. Balkin explains that Congress would levy “a common penalty tax” on taxpayers who failed to buy insurance, analogous to “a tax on polluters who fail to purchase and install anti-pollution equipment.” The tax could also be considered “an excise tax on an event—a failure to pay premiums in a given month” and as such a failure to comply with the law. He thinks the federal mandate, under “Congress’s powers to tax and spend for the general welfare,” is one that “need not be apportioned by state.”

Prof. Mark A. Hall of Wake Forest University School of Law and Medicine has explored these questions in his essay “The Constitutionality of Mandates to Purchase Health Insurance” (on Georgetown Law School’s O’Neill Institute Web site). He finds a third source of authority for the mandate: the Constitution’s commerce clause. According to Hall, Congress can condition federal funding on “state compliance with federal initiatives” and it can also allow states to opt out of direct compliance as long as they “implement similar regulation that meets federal requirements.”

The current march toward litigation by opponents of the health care bill appears well orchestrated and has moved to the level of action by the states. Led by the attorney general of Florida, a Republican who is running for governor this year, more than two dozen states are seeking to amend their state constitutions to allow them to opt out of the federal health care mandate on the ground that it constitutes an infringement of liberty. Furthermore, they are not, as Hall suggests, planning to meet federal requirements of their own accord. Rather, they are registering their unwillingness to comply with the law.

Although attacking the constitutionality of the federal mandate is a last-ditch political tactic by opponents who have not been able to stop the health care reforms in Congress, lawmakers cannot afford to dismiss the strategy while the courts decide. They must work now to ensure that the opposition does not delay, hobble or unravel the reform. The committees writing the final bill should spell out the wide constitutional basis on which they draw their Congressional authority generally, and explicitly for the mandate. The House bill already invokes Congress’s power to tax. But that basis should be broadened.

During the New Deal era, Republicans played a similar hand, contesting in the courts parts of Franklin D. Roosevelt’s domestic program—with notable success. The Supreme Court invalidated two laws based on the commerce clause: the Agricultural Adjustment Act and a major portion of the National Recovery Act. On the latter occasion, Justice Charles Evans Hughes wisely said, “Extraordinary conditions may call for extraordinary remedies,” but they “do not create or enlarge constitutional power.” The truth is, today’s recession does call for extraordinary remedies. But no one wants health care at the expense of the Constitution. That puts the onus not only on members of Congress to construct legal remedies within their Constitutional powers, but also on the American people, who stand to benefit by health care reform, to support reasonable financing mechanisms to provide it.

Comments

Paul Louisell | 2/24/2010 - 11:24am

I have to stop reading your editorials. 


Tell me this - What is the problem with our existing health care system?  Specifically.


I'm 60 years old and have health insurance through my employer.  I have to pay a deductible.  My salary is decreased to a certain extent because of the premiums paid by my employer.  I also have a co-pay provision.  I am intrigued by the tax free medical savings plan concept.  I pay for my health care and I am satisfied with my health care.  I can choose to be covered or not. 


The non-working resident (whether or not a citizen or even a legal immigrant) relies on tax dollars for his health care.  I've not read of anyone seriously ill who has been turned away by a hospital because he did not have health insurance.  The hospital must treat such persons, knowing it will never be paid by that person, and count on others to foot the bill.  What happens when the number of people seeking "free" medical care reaches a critical mass and there are not enough taxpayers or taxes to pay for the services?  That's what' happening now.  At some point, the US is going to run out of countries willing to buy up its T-bills.


What I don't like, and it has been going on for the last 15 years. are the annual 10% increases in health care premiums.  Employers, employees, economists, medical professionals, even legislators (who don't have to worry about such increases because they get their medical insurance from taxpayers) agree that such annual increases are not sustainable.  Our medicare and medicaid plans (taxpayer funded and government run) annually eat a larger and larger portion of our national budget.  (Remember, they were supposed to be self-funding.  That stopped 20 years ago.)  Demographics.  Fewer working people contributing to the system and more non-working people accessing it and living longer (because of the quality of the US health system) 


Our constitution does not guarantee housing, clothing, food, education or health care.  It used to be that individuals would find work in the most productive and innovative economic system known to mankind and buy those things for themselves.  Now, it seems as though an increasing minority of people look upon federal entitlement programs as their heritage, their birth right.  It is that mentality that drives me crazy.  Charity is not a government function.  It used to be the function of voluntary organizations including religions.  But first and foremost, charity is an individual choice.  It cannot be a government imposed tax or fine or mandate.


 There are many in this country who believe they should be able to determine how their money is spent - That they do not need the government telling them what health care to buy; what to pay for it; what to provide for their employees.  If Congress has the power to mandate to individuals that they spend a proportion of their money on health care, it's time to re-write our constitution to take back individual property rights.  For this magazine to support a plan that will increase the cost of medical care - and further curtail individual liberty - is a disgrace.  I am ashamed to acknowledge that I am a Jesuit educated Catholic.  Your editorial board has demonstrated to me that it supports a socialist government where elected officials decide for all of us how our private property is to be utilized for the "public good".  Such a society replaces God with the State.  Such a society is doomed to failure.


 

E.Patrick Mosman | 1/28/2010 - 1:56pm

Mr.Appleton,

How would you describe the government's taking overover one-sixth of the American economy,managing every aspect of every American's health care, mandating coverage and having government appointees deciding and dictating the type, scope and cost of approved medial treatments, if not socialism or communism?

As Norman Thomas , the long time Socialist party Presidential candidate predicted: "The American people will never knowingly adopt Socialism. But under the name of 'liberalism' they will adopt every fragment of the Socialist program, until one day America will be a Socialist nation, without
knowing how it happened."

Attempting to hide the true economic and political nature of government run and mandated care by not calling it by its true name is the way to avoid serious discussion of the consequences predicted by Mr. Thomas.

Michael Appleton | 1/27/2010 - 6:53pm

The comments on this topic have been all over the board, but generally miss the point. The issue isn't the role of charity in government. It is whether or not the people of this nation should declare that all citizens are entitled to health care as a matter of public policy. If your view is that health care should not be granted the status of a legal right, no further discussion is necessary. If your view is that health care should be a right, then the question becomes how to accomplish it. Charges of "communism" and "fascism" and "socialism" may be emotionally satisfying to some people, but they are useless for purposes of serious discussion. Secondly, all health care is and will continue to be "rationed" in some manner for the simple reason of cost. That is why insurance companies place caps on lifetime benefits and routinely deny procedures they deem to be experimental or not yet generally accepted in the medical community.

James Sheehan | 1/27/2010 - 10:17am
To Mr. Mosman and Collins,
I'm sorry, I read it wrong, it really says:
"Amen I say to you, whatever you did for the richest and strongest of your brothers and sisters you did for me"
Mt. 25:40
Somhow Jesus's strong defense of capitalism is missing here!!!
E.Patrick Mosman | 1/27/2010 - 7:11am

Mr.Sheehan,my reference to "culture of death" refers specifically to the legislation under consideration by Congress at this time which supports both abortion paid for by taxpayers' money in one form or another and denial of best available care to the elderly based on cost effective considerations established by unelected panels of 'experts' not to much needed efforts to control costs such as tort reform and more competition among health care insurers. If your friends and relatives are satisfied with their health service so be it but that is no excuse for Americans to adopt systems which result in assigned doctors, long waits for routine tests and surgeries, non-availability of certain operations,i.e., knee and hip replacements or two, or medications based on cost considerations or age and hospital wards of 8 to 12 beds instead of semiprivate or private rooms. In most of those countries there are private doctors, in London there are the Harley Street physicians, and private clinics for those who carry their own insurance.   

MICHAEL COLLINS MR/MRS | 1/26/2010 - 5:32pm
So, Mr. Sheehan would risk the economy of the United States because he knows two people who are abused by their employers. Wow! I don't think he quite gets it. People I know who are against the current health care plan are not against health care reform, but we do fear a plan that has been hastily crafted, drafted behind closed doors, done in a vacuum and done by politicians. I would much prefer to have seen something on the order of the congress putting together a working group of health care professionals to try to put together a plan that will work for all of us, that won't further bankrupt this country and that would be acceptable to legislators on both sides of the aisle. Look at Social Security, look at Medicare. Can you really trust politicians to do this correctly? I think not.

Insofar as the countries he names laughing at us - let them laugh. Of the European models of which I know anything about those are four that I would not want any part of. I believe Belgium has a pretty good system. So, if he can show me that the Belgians are laughing.......
James Sheehan | 1/26/2010 - 3:13pm
I have family and friends who live in Ireland, England, France and Canada. They laugh at our current Health Care System that values profits over people. (like mr. mosman)
Is it compassionate to force people to stay in jobs for 10 years without a raise because their boss knows they have a preexisting condition and will not get health care if they leave? I know of two people who are abused by their employers in the great private sector because of this, yet Mr. Mosman calls the reform of the current system the culture of death. Perhpas he should listen to the cries of these poor people. How is it compassionate for people who lose thier jobs to decide if they can pay the rent or continue paying for their insurance premium?

Somehow Christianity (Catholicism in particular) has been reduced to abortion, a topic not addressed by the Gospels, and yet those principles addressed by the gospels are given little or no attention. No wonder the church is shrinking.
E.Patrick Mosman | 1/25/2010 - 3:00pm

Mr.Lien,
The Pope is infallible and incapable of error in expounding doctrine on faith or morals, his infallability does not exted to temporal matters such as government provided health care or even war. What is your definition of government control from the 'economic' point if not socialism or even communism? Today 50 percent of wage earners already provide 97 percent of the income tax receipts to the USA Treasury" What is the definition of 'common good' if approximately 50 percent of wage earners pay no federal income tax and most already receive welfare payments disguised as tax credits for 'unearned income,' for children, and in the form of SSI, food stamps, housing support and a host of other federal, state and local government programs available only to the needy. Is it the role of government to be the essential and probably soon the only source of Charity as the Obama administration plans to reduce the tax credits for charitable contributions for those who provide the most: most http://www.commentarymagazine.com/viewarticle.cfm/the-war-on-philanthropy-15190
When does confiscatory tax rates in the guise of 'for the common good' on already stressed wage earners become a challenge to the ability of religious and non-government charitable organizations to carry out their own charitable functions?
 It appears that Catholic Church does not even recognize that Obama plans to reduce or eliminate religious organizations and non-government groups, from their historic roles and replace them with socialistic government run programs.
The health care program advocated by Obama and pushed by the democrats promotes the culture of death at the beginning of life by supporting goverenment paid abortions in one form or another (NB Obama also voted against providing medical attention to a child born alive after a botched abortion attempt,) and at the end of life as Obama has publicly declared that elderly patients should be denied the best life saving care and essentially prescribed "take two aspirin and  prepare to meet your Maker.
While Pope John Paul II and Pope Benedict XVI may recognize the need for states to have some role in charitable acts for the common good, they could not and should not support the 'cultiure of death' proposals in Obamacare.

William McGovern | 1/25/2010 - 1:07pm

Instead of trying to save a bad plan, you should be encouraging the majority Democrats to make a sincere effort to have Republicans sit down in an open way, with hearings.  The goal should be to develop the best plan to expand coverage to all citizens while finding ways to encourage efficiencies thereby reducing health care costs. 

Jim Lein | 1/25/2010 - 12:26pm

Re Comment # 3 by E. Patrick:  The New Testament may not say that governments should care for the poor, but our Pope does.  He's for universal health care, welfare and regulation of the markets - all provided or controlled by the government (we the people).  No governmental plan or program is perfect. So we should have none?  To have no governmental plan or program to help the poor is hardly Christ-like.     

E.Patrick Mosman | 1/25/2010 - 11:50am

How is it possible for even learned editors to be so positive about a 2,000 plus page bill crafted in secret behind closed doors, said to be full of both exemptions,exceptions and monetary bribes for fellow legislators, unions and certain states as well as  mandates, increased taxes and spending for stat funded Medicaid, reduced spending for Medicare criminalizing the failure to purchase healthcare insurance and last but not least the unelected panels already established to curtail health care especially for premature children and the elderly? By publicly supporting government mandated universal health care the editors as well as the Catholic Bishops enter into the arena of  negotiating with those who support abortion, euthanasia, rationed care for the infirm, disabled, elderly and counseling on end of life care or not.

Jesus Christ rejected negotiations with evil when he rejected the devil's temptations three times. Like the devil, Mr. Obama wraps his views on abortion, euthanasia, rationed care  et al, in terms that are intended to lure Catholics into negotiations or acceptance of abortions for some promised good results in other areas. Apparently some 'Catholics' with their subjective conscience have swallowed Mr. Obama's lure and join those who claim that Jesus was a big-government socialist provider with regard to helping those in need and reducing individuals personal responsibility to "Love the Neighbor' and replacing it with government programs is a misreading of His message. Jesus Christ made the point "to render to Caesar the things that are Caesar's and to God the things that are God's" with no guidelines as to how the Romans were to spend the tax monies.

"For you will have the poor always with you" Matthew 26.11 and nowhere in the New
Testament does Jesus Christ lay the responsibility for caring for the poor, the sick the hungry or thirsty, the homeless or any oppressed people on any governmental body. He did not cite King Herod, the priests of the temple, the local mayor or the Roman powers as the source of Charity. He made it an individual responsibility time after time in His sermons, in His parables and in His own acts. The Good Samaritan was not an example of "Love thy neighbor" because he stopped at the nearest inn and asked that a 911 call be made but because he acted, providing aid,comfort and financial assistance to his neighbor.
It is unlikely that Jesus would be available to negotiate or accept Obama's promises for government programs to reduce  intrinsic evil acts any more than He negotiated with the devil.

TM Lutas | 1/25/2010 - 11:46am

Please talk with your colleagues from countries that have experienced end-stage socialized medicine systems. Russia, Romania, Poland, Cuba, even Canada and the UK can give you valuable insight as to how cruel you are unintentionally being by advocating this failed, dead end reform. While you (and I) may personally not see the end stage come in our lifetimes, the next generation will and it is a sad tale of injustice, unnecessary suffering, and a long road to recovery to re-establish a sustainable and just payment system. 


Canada's Supreme Courts, both provincial and national, have called out Canada's political class for denying health care (formally a right under the Canadian constitution) by providing too little funding. The problem is that enough funding never seems to arrive in any of these countries. The lines form and people, quietly and out of the media spotlight, suffer and die. Canada has the luxury of sending its overflow across the border but for the US, there is no convenient place to go when our system will follow other socialized systems downhill. 


In the end stage for countries with no nearby escape, ambulance operators will triage patients over the phone. Too old? We're not coming, light a candle for her and wait for grandma to die. This isn't a prediction but the actual experience of my in-laws in Romania. 


Looking compassionate is a poor substitute for being compassionate. Compassion in health care lies in finding a sustainable solution for us and the next generation. The current Democrat approach isn't acceptable and it is shameful for a Catholic institution to care so much for the image and so little for the reality of compassion. Do your homework. The federalist lawsuits are likely to save us from a bad solution. 

C Walter Mattingly | 1/23/2010 - 10:18am

While the "last ditch political tactic(s) by opponents who (were) not able to stop health care reforms in Congress" may have failed to stop the health reforms in Congress, the voters of the state of Massachusetts, with its huge democratic majority, apparently have done so.

What now?

Perhaps the best way to move forward on health care reform, which most believe is truly needed, is to do what President Obama proposed he would do, insincerely it turned out,  when he was running for office: have an open, inclusive debate on the subject on CSPAN. Instead he turned reform over to Pelosi and Reid to work out behind closed doors.  Their bill was turned in shortly before Christmas.  Obama instructed it to be rushed through basically without debate. As the American public has never been particularly fond of having things done behind closed doors and then crammed down their throats with hardly time to read and discuss the proposals, its response to what might have reminded them of the old Daley Chicago Machine politics was not surprising: no thanks.

While this open debate would take time, in fact it may not delay most coverages the stalled proposals would have had even if they had gone through this cycle. As part of the smoke and mirrors strategy to distort the cost of the program over 10 years, most of the key provisions would not have taken effect for 2 or more years anyway, even though the taxes would have begun immediately. 

It is past time for President Obama to show integrity in his word and live up to his original commitment.  Doing so belatedly is better than not doing it at all. And we need health care reform.

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