Tuesday, October 6, 2009

Health Care Mandate Constitutional. Another Red Herring?

This analysis by Erwin Chemerinsky, dean of the UC Irvine School of Law, in the LA Times makes it so easy to understand. There are many duh! moments to consider.

"Are the healthcare bills pending in the House and Senate unconstitutional?
That's what some of the bills' critics have alleged. Their argument focuses on the fact that most of the major proposals would require all Americans to obtain healthcare coverage or pay a tax if they don't. Although the desirability of this approach can be debated, it unquestionably would be constitutional.

First, they say the requirement is beyond the scope of Congress' powers. And second, they say that people have a right to be uninsured and that requiring them to buy health insurance violates individual liberty. Neither argument has the slightest merit from a constitutional perspective.

Congress has broad power to tax and spend for the general welfare ... In the last 70 years, no federal taxing or spending program has been declared to exceed the scope of Congress' power ... The ability to tax people to spend money for health coverage has been long established with programs such as Medicare and Medicaid ... The reality is that virtually everyone will, at some point, need medical care ... Another basis for the power of Congress to impose a health insurance mandate is that the legislature is charged with regulating commerce among the states ... The Supreme Court has held that this means Congress has the ability to regulate activities that have a substantial effect on interstate commerce ... for example, the court held that Congress could prohibit individuals from cultivating and possessing small amounts of marijuana for personal medicinal use because marijuana is bought and sold in interstate commerce.

The relationship between healthcare coverage and the national economy is even clearer. In 2007, healthcare expenditures amounted to $2.2 trillion, or $7,421 a person, and accounted for 16.2% of the gross domestic product.

The claim that an insurance mandate would violate the due process clause is also specious. Most states have a requirement for mandatory car insurance, and every challenge to such mandates has been rejected.

Finally, those who object to having health coverage on freedom-of-religion grounds also have no case. The Supreme Court has expressly rejected objections to paying Social Security and other taxes on religious grounds. More generally, the Supreme Court has ruled that individuals do not have a right to an exemption from a general law on the ground that it burdens their religion."

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