Outside editorial: Health care law moves closert to Supreme Court

Posted: Sunday, February 06, 2011

The following editorial first appeared in the Fort Worth Star-Telegram:

It’s now two for, two against, for those keeping score.

But just tallying district court rulings hardly helps determine whether the Patient Protection and Affordable Care Act is constitutional.

That two federal judges have declared the health insurance reform law a valid exercise of Congress’ Commerce Clause power and two have concluded the opposite largely means what was clear at the outset of the litigation: The Supreme Court will have final say.

But what the justices ultimately will decide, most likely not for at least another year, is only whether Congress can require all Americans to either buy health insurance or pay a penalty.

That won’t be a verdict on whether other aspects of the law are wise or popular or will be effective. And it certainly won’t resolve whether congressional Republicans have better ideas for tackling acknowledged problems in the U.S. health care system.

The four key rulings to date underscore two competing perspectives on Congress’ power to regulate interstate commerce.

In one view, opting out of health insurance, for whatever reason, is an economic choice, and Congress can regulate that through an individual mandate to buy coverage as part of a broader statutory scheme. Judges in Michigan and Lynchburg, Va., accepted this argument.

The opposing view holds that no valid interpretation of the Constitution’s Commerce Clause gives Congress power to regulate inactivity. Judges in Richmond, Va., and now in Pensacola, Fla., prefer this interpretation.

“It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place,” U.S. District Judge Roger Vinson wrote Monday in a suit brought by 26 state attorneys general, including Texas’.

Vinson didn’t block enforcement of the law, which is being phased in, with some of the most important parts taking effect in 2014. But by holding the entire law unconstitutional because the individual mandate couldn’t be separated from the other elements, his ruling would undercut changes that don’t hinge on everyone buying coverage.

He even cited several, such as an “Independence at Home” project for chronically ill seniors; a special Medicare enrollment period for disabled veterans; and provisions to improve women’s health, prevent abuse and ameliorate dementia.

The problem with the litigation — and with much of the posturing over repealing the law — is that it’s framed in misleading terms of political winners and losers: socialism vs. liberty; big government vs. state’s rights; Obama vs. “majority” will; a “radical” interpretation of the Commerce Clause vs. a “correct” interpretation of the Commerce Clause.

But a court win for opponents of the law won’t correct a single problem in the health care system.

Even Vinson recognized that Congress has some authority to take action, given that the health-care market accounts for one-sixth of the U.S. economy.

“There is widespread sentiment for positive improvements that will reduce costs, improve the quality of care and expand availability in a way that the nation can afford. This is obviously a very difficult task,” he wrote. “Regardless of how laudable its attempts may have been to accomplish these goals in passing the Act, Congress must operate within the bounds established by the Constitution.”

The split among the courts proves that age-old arguments about the commerce power persist — but not yet that Congress has acted far beyond constitutional bounds.

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