Health Care Constitutionality Revisited

Recently, this blog discussed an article considering the constitutionality of the current health care proposals.  More developments have occurred since that writing.  As promised, here is an update.

In a column for politico.com, Erwin Chemerinsky, noted Con Law scholar and Dean of the Law School at UC-Irvine, wrote that Congress could certainly pass the proposed legislation under the commerce, taxing, or spending powers.  The dean cited Gonzales v. Raich in support of the commerce clause arguments.  He concludes, "There is much to argue about in the debate over health care reform, but constitutionality is not among the hard questions to consider."

An article in yesterday's Los Angeles Times attempted to address both sides of the issue.  The article quoted Dean Chemerinsky and also opponents of health care reform from organizations such as the Cato Institute.  The article also quoted a Bush administration official stating, "Health insurance is a good thing, and everyone should have it. But there are limits to what Congress can do. It doesn't have the authority to tell you to buy something."

Finally, Professor Robert Schapiro of Emory Law wrote a column for today's Atlanta Journal Constitution.  Professor Schapiro argues "it is the advocates of reform, not their opponents, who are the true standard bearers of federalism. The health care plans build on the interaction of state and federal power that is central to federalism."  Professor Schapiro, similar to Dean Chemerinsky, relies on Gonzales v. Raich to support his conclusion.   In addition, he points out that Massachusetts served as a laboratory for experimenting with universal health coverage.

As the debate on health care develops, we will continue to keep you posted on the constitutional issues.

NLS