Reform backers cite court ruling

MONDAY, MARCH 29, 2010

WASHINGTON – Defenders of the newly enacted national health care law and its rule that all Americans get health insurance have a powerful and recent Supreme Court precedent on their side, a 2005 ruling that upheld federal restrictions on home-grown marijuana in California.

At issue in that case, like the coming challenge to the health care mandate, was the reach of the federal government’s power.

Conservative Justices Antonin Scalia and Anthony Kennedy joined a 6-3 ruling that said Congress could regulate marijuana that was neither bought or sold on the market but rather grown at home legally for sick patients. They said the Constitution gave Congress nearly unlimited power to regulate the marketplace as part of its authority “to regulate commerce.” Even “non-economic local activity” can come under federal regulation if it is “a necessary part of a more general regulation of interstate commerce,” Scalia wrote.

This week, Obama administration lawyers pointed to Scalia’s opinion as supporting the constitutionality of broad federal regulation of health insurance, and most legal experts agreed. In the health care legislation Congress said that if individuals could freely opt out of having health insurance, it could undercut the newly regulated insurance market. Freeloaders could wait until they were hurt in an accident or contracted a disease and then demand insurance coverage despite their “pre-existing condition.” The court’s ruling in the 2005 case, Gonzales v. Raich, “is an enormous problem” for those who contend the health care mandate is unconstitutional, said Simon Lazarus, a lawyer for the National Senior Citizens Law Center.

“It clearly says Congress has vast regulatory authority over interstate commerce.” Beginning in 2014, individuals are required under the new law to “maintain minimum essential coverage.” Those who fail to do so can be assessed a modest tax penalty of up to $750. Violators “shall not be subject to any criminal prosecution or penalty” or any “lien with respect to any property,” it says.

Last week, the state attorneys for 13 states – all but one of them a Republican – filed a suit in federal court in Pensacola, Fla., to challenge the requirement that individuals have health insurance. “By imposing such a mandate, the Act exceeds the powers of the United States under Article I of the Constitution,” the suit says. The Virginia attorney general filed a similar, but separate suit. The suits also say the federal law tramples on states’ rights by requiring them to spend more on health care.

David B. Rivkin, a Washington lawyer who represents the 13 states, said the legal challenge rests on the principle that the federal government has limited powers. “It is a matter of fundamental principle in the Constitution. Ours is a government of limited and enumerated powers. And there has to be a limit,” he said.

He also argued that the Constitution did not permit Congress to regulate health insurance, which has traditionally been under state control.

While the Bill of Rights put clear limits on the government’s power to interfere with an individual’s freedom of speech or free exercise of their religion, the Constitution does not put clear limits on Congress’ power. Article I says “Congress shall have the power to lay and collect taxes … (to) provide for the common defence and general welfare of the United States … (and) to regulate commerce.”

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