Constitutional Law Prof Blog

More on the Constitutionality of Health Care Reform

Simon Lazarus, Public Policy Counsel to the National Senior Law Center, published an Issue Brief with the American Constitution Society last month taking on the various claims that a health insurance mandate (in the Senate version of health care reform) and tax incentives encouraging the purchase of health insurance (in the House version) are unconstitutional.  We've covered the issue here, here, and here.

Here's Lazarus on the claim that requiring health insurance amounts to regulating non-activity--one of the more popular arguments that health care reform exceeds Congress's Commerce Clause powers:

This "inactivity" is empty and verbal gimmickry.  Individuals who go without health insurance--if health insurance is available to them and affordable, a contingency that the legislation goes to great lengths to eliminate--are not "doing nothing."  They are deciding to put off paying for health insurance and for health care--because they believe that they won't need it until some future date, or because they recognize that, one way or the other, through hospital emergency room care or other means, necessary care will be available if serious illness or an accident strikes.

Brief at 8-9.

Lazarus concludes by putting the issue in a larger context:

If, as opponents claim, the burden of mandatory health contributions was--in principle--oppressive and unfair, Medicare, and for that matter Social Security taxes would raise constitutional questions no less if these landmark statutory programs were cast as regulations of interstate commerce.  In fact, of course, since 1937, such questions have never been raised either in the courts or in Congress.  The reason is simple:  most people regard these mandatory contributions--in light of what they expect to receive in exchange--as a bargain not a burden.

Brief at 15 (emphasis in original).

SDS

AIG Bonuses & Constitutional Remedies

What are the constitutional ramifications of Congressional action seeking recoup of the bonuses paid to AIG executives?

Over at TaxProf Blog, Paul Caron has a great post with supporting materials for Larry Tribe's
opinion that "the proposed 90% tax on the bonuses paid out by AIG would pass constitutional muster under the Bills of Attainder and Ex Post Facto clauses Article I, Section 9; the Contract Clause of the Article I, Section 10; the Due Process Clause of the Fifth Amendment; and the Takings Clause of the Fifth Amendment."

Over at Balkanization, Sandy Levinson argues in his post that Congress could abrogate the contracts: "the Contract Clause prohibiting the "impairment" of contracts applies, textually, only to state governments, not to the national government."

One of the most innovative ideas I've seen - - - and one seemingly not being considered by Congress - - - comes from ConLaw Prof, Mae Kuykendall.

She posted what she calls a "novel" notion on the ConLawProf listserve; it is quoted here with her permission:

[H]as anyone considered having the AIG bonus recipients declared "enemy combatants?"  That would seemingly open up a much wider range of legal tools for gathering information about co-conspirators and possible continuing plots, and for persuading them to return the money.  According to some distinguished lawyers and former high officials, it is a very useful concept for situations that have not previously been encountered and which pose extraordinary threats to the American people.  Moreover, no one knows in what communities these "geeks bearing formulas" are now located; many Americans would be terrified to know one was living in their town.  Removing them to a remote, high-security location, outside the zone of the usual niceties of due process, may be a good solution.

RR