This article first appeared in the St. Louis Beacon, Feb. 3, 2011 - WASHINGTON - With federal courts divided and the Senate moving towards a vote Wednesday on repealing last year's health care overhaul -- a vote that later failed -- a panel chaired by Sen. Dick Durbin, D-Ill., weighed arguments about whether a key part of the law is unconstitutional.
Most of the testimony focused on the individual mandate -- a controversial provision that will require everyone to have health insurance by 2014, which supporters of the law contend is necessary to expand the pool of insured individuals so that private health insurers can cover persons with pre-existing medical conditions.
The main question addressed by a panel of legal experts at the Judiciary Committee hearing was whether Congress has the power, under Article I, Section 8 of the Constitution, to mandate health coverage. Durbin -- who chaired the hearing as part of what some observers called a "tryout" in his bid to be named chair of the Judiciary panel's subcommittee on the Constitution -- contended that Congress had clear authority to impose the mandate.
"Many of America's landmark governing achievements -- Social Security, the Civil Rights Act of 1964, the federal minimum wage -- were challenged in lower courts before they were ultimately upheld by the Supreme Court," Durbin said. "I believe the same will happen with the Affordable Care Act. Millions of Americans are counting on it."
But the committee's ranking Republican, Sen. Chuck Grassley, R-Iowa, said the health-care overhaul has "major problems" -- including "many constitutional questions" about the individual mandate. "If this law is constitutional," he said, "Congress can make Americans buy anything that Congress wants to force you to buy."
As Durbin predicted, an effort in the Senate to repeal the law failed, meaning that the Supreme Court ultimately may decide its future.
So far, four district court judges have ruled on the merits of the health overhaul, with two judges appointed by Republican presidents striking down the entire law or the mandate provision and two Democratic-appointed judges upholding the law as constitutional.
A dozen other legal challenges have been dismissed on procedural grounds. In the most recent ruling, Judge Roger Vinson of Florida ruled this week that the law's individual mandate is not within the legal bounds of Congress's power under the commerce clause.
The Florida case is probably headed to the 11th Circuit Court of Appeals, while the 4th Circuit Court of Appeals is expected to hear oral arguments on a previous ruling in May by a judge in Virginia. Depending on how quickly the courts act, and how they rule, experts say the case could reach the Supreme Court at the end of this year or early next year.
Experts argue both sides
At Wednesday's hearing, two law professors and Oregon Attorney Gen. John Kroger argued that the health-care law was clearly constitutional; two other witnesses made the case that the individual mandate violated the constitution. Altogether, those five lawyers have argued 57 cases before the Supreme Court.
The health-care law was deemed constitutional by both Charles Fried, a former solicitor general from the Reagan administration who is now a professor at Harvard Law School, and Walter Dellinger III, a former acting solicitor general from the Clinton administration who is now an emeritus professor at Duke University's law school.
Fried argued that health insurance clearly qualifies as a "rule for commerce," and that under the constitution's commerce clause, Congress has the power to set such rules. Dellinger agreed that "the assertion that the national Congress lacks the constitutional authority to adopt these regulations of the national commercial markets in health care and health insurance is a truly astonishing proposition."
But Georgetown University law professor Randy E. Barnett argued that the individual mandate is "truly extraordinary and objectionable." He told the panel that Congress exceeded its constitutional powers by "mandating that you send your money to a private [insurance] company and do business with it for the rest of your life. This simply does not follow" from the constitution.
Attorney Michael Carvin, a partner in the Jones Day law firm who was a lawyer in the Reagan administration, argued that Congress cannot regulate an individual's decision to not purchase insurance. "The issue is whether inactivity is commerce," Carvin said. "The decision of a citizen not to buy health insurance doesn't affect commerce."
Those "inactivity" arguments didn't convince Fried, who said: "That the rule speaks to inactivity as much as activity - which may or may not be true - is irrelevant. Nothing in constitutional text or doctrine limits Congress to the regulation of an activity ...."
Arguments echo Senate debate
Many of the arguments at Wednesday's hearing rehashed the debates in Congress last year and legal arguments that have surfaced in the months since the law was enacted last spring. Durbin and other Democrats contended that Republicans are pushing legal challenges to the law with "activist" Republican-appointed judges as a way to get around the will of the people as expressed by the congressional votes.
"They are pushing the Supreme Court to strike down this law because they couldn't defeat it in Congress," Durbin said. That claim irritated Grassley, who charged that this week's hearing on the health overhaul's constitutionality should have been held before the vote on the law.
"The sensible process would have been to hold hearing on the law's constitutionality before the bill passed, not after," Grassley said.
But the Senate Judiciary Committee's chair, Sen. Patrick Leahy, D-Vt., said senators did debate the constitutionality of the reform law last year. "The Senate rejected a Constitutional point of order," Leahy said. "We voted that the act was constitutional."
On Tuesday, Sen. Roy Blunt, R-Mo., chose to give his maiden Senate speech on the health care issue, and he came out squarely against the law.
"The American people are the victims of having to rush forward with a bill that wasn't ready to become law," Blunt said. "When employers are telling us they're not hiring because of uncertainty created by this new law, when courts are ruling the law unconstitutional, when voters are overwhelmingly rejecting it -- we need to understand why."
Blunt argued that the Senate "should reject the law, repeal it now, and move forward with more competition, more transparency, and better health care. Better health at a lower cost is achievable if we do the right things."
The repeal vote later failed on a party-line vote. Afterward, Blunt said in a statement:
"Very rarely do we have the chance to fix a mistake like we did today with this vote on the repeal of President Obama's burdensome health care bill.
"Voters in Missouri and nationwide sent a clear message last fall that they wanted their leaders in Washington to repeal and replace this law. I'm deeply disappointed that my colleagues across the aisle refused to listen to that clear message, and instead voted to defend this bill, which two federal courts have already deemed unconstitutional.
"Americans deserve a health care plan that cuts costs, increases access, and helps spur job creation, and I will continue to call for the repeal and replacement of this flawed legislation."