Posts Tagged - ‘constitutional law’

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Is There Precedent To Uphold Healthcare Reform?

Monday, July 12th, 2010

Image: BAR Photography under CC 3.0

One of the main arguments against the legality of healthcare reform is the contention that it is unconstitutional. Many opponents believe that the individual health insurance mandate, in particular, violates the 10th Amendment. That amendment says that all rights not specifically given to the federal government in the Constitution or its amendments are left to each state.

However, a competing interpretation–accepted by some conservative justices, no less–states that at times, the national government can exercise powers not expressly mentioned in the document. A recent Supreme Court decision (approved by seven out of the nine members) upheld the federal government’s right to indefinitely detain sex offenders after serving their sentences. Surely, the specifics of ankle monitoring or house arrest for child molesters and others were not on the founding fathers’ minds.

Granted, U.S. vs. Comstock is relatively less controversial an issue than affordable health insurance reform. Still, it’s a sign that the highest court is willing to consider the application of the “elastic clause”, which states that the federal government is allowed to pass laws to help it execute the powers it was expressly given.

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Why Lawyers Think Health Insurance Reform Is Constitutional

Friday, April 2nd, 2010

(Image: blmurch under CC 3.0)

A recent panel from legal scholars at the University of Washington discussed the most important law-related topic at the moment: health insurance reform. It wasn’t much of a debate; the moderator claimed that the university tried to find academic experts who would proclaim the bill–and specifically its individual mandate–fully unconstitutional, but failed. One of the panelists, a former Republican attorney general, said he was sympathetic to the political views of those states filing lawsuits. However, their attempts had little legal merit.

Why do they believe the lawsuits will fail?

  • One of the primary arguments of opponents is that the federal government is overstepping its authority by getting involved. However, the Constitution gives it the right to “tax and spend”, as well as regulate interstate commerce. Since health-care (including the purchase of health insurance plans) makes up over one-sixth of the American economy, they believe it qualifies.
  • Contrary to some accusations, states are not being forced to participate. They can decline involvement in the mandate, but they will be giving up federal health funding if they do so. Over the years, that ‘extortion’ has been deemed legal (such as when the federal government refused to send funding to states’ transportation departments if they didn’t increase the legal drinking age from 18 to 21).
  • Recent case precedents in the Supreme Court will make it difficult for the justices to deem the bill unconstitutional.

It remains to be seen if their dismissal is correct.

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