Constitutionality of health overhaul questioned

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But other legal scholars say that the Supreme Court has in recent decades taken a much broader view of Congress’ commerce powers and would likely do the same in this case if the legislation’s mandate is challenged in court.

“I would be willing to wager with Professor Barnett that the Supreme Court would uphold such a mandate, given the court’s expansive reading of the Commerce Clause. In fact, I don’t think the vote would be close,” Washington and Lee University professor Timothy Stoltzfus Jost said.

Even some conservative legal analysts who oppose the health care reform think that in the end, if the legislation passes, Congress would win in the courts.

“In this case, the overall scheme would involve the regulation of ‘commerce’ as the Supreme Court has defined it for several decades, as it would involve the regulation of health care markets. And the success of such a regulatory scheme would depend upon requiring all to participate,” writes Jonathan H. Adler, law professor at Case Western Reserve University School of Law.

House Majority Leader Steny H. Hoyer of Maryland was asked at a news conference recently whether Congress had “the power to mandate that somebody buy health insurance.” He replied: “Promoting the general welfare in the Constitution obviously gives broad authority to Congress to effect that end. Clearly, this is within our constitutional responsibility.”

The Senate Finance Committee, which recently approved one of the Senate’s two main health care bills, “thoroughly explored the issue and believes that the policies put forward in our bill will fall within” the constitutional powers of Congress, a top aide said.

But the excise tax that would be imposed on anyone who did not purchase insurance and its enforcement “would invite [constitutional] scrutiny,” said a paper presented to the Federalist Society for Law and Public Policy Studies by Peter Urbanowicz, a lawyer and health care management consultant, and Dennis G. Smith, senior research fellow in health care reform at the Heritage Foundation.

They cited Columbia University health policy professor Sherry Glied, named by Mr. Obama to a top policy job in the Department of Health and Human Services, who warned that “developing a system to promptly identify and penalize scofflaws will take effort and ingenuity, particularly in our diverse and mobile country.”

“It may require a degree of intrusiveness and bureaucracy that some will find unpalatable.”

About the Author
Donald Lambro

Donald Lambro

Donald Lambro is the chief political correspondent for The Washington Times, the author of five books and a nationally syndicated columnist. His twice-weekly United Feature Syndicate column appears in newspapers across the country, including The Washington Times. He received the Warren Brookes Award For Excellence In Journalism in 1995 and in that same year was the host and co-writer of ...

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