Constitutional Challenges to the Health Care bill
Here's what he says about the individual mandate:
On the "Cornhusker Kickback":
But the individual mandate extends the commerce clause's power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying "cash for clunkers" is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.If you choose to drive a car, then maybe you can be made to buy insurance against the possibility of inflicting harm on others. But making you buy insurance merely because you are alive is a claim of power from which many Americans instinctively shrink. Senate Republicans made this objection, and it was defeated on a party-line vote, but it will return.
On "Deem and Pass":
Some states are threatening lawsuits to block the special deals brokered by individual senators in exchange for their votes. Unless the reconciliation bill passes the Senate, such deals could remain in place. Article I of the Constitution allows Congress to tax and spend to "provide for the common defense and general welfare of the United States." Normally, this is no barrier to legislation benefiting a particular state or city. Congress can always argue that, say, an Air Force base in Nebraska benefits the United States as a whole. But the deals in the Senate bill are different. It is really hard to identify a benefit to all the states from exempting one state from an increase in Medicare costs or allowing only the citizens of Florida to get Medicare Advantage.
The whole purpose of the "deem and pass" procedure -- which was advocated by Rules Committee Chairman Louise Slaughter -- was to avoid a separate vote on the Senate bill, which many House members find objectionable, and instead vote on the reconciliation bill and simultaneously "deem" the Senate measure passed. Although Democrats cited prior examples of deem and pass, "the Republicans did it" is not a recognized constitutional argument -- especially if the public and the justices have never heard of such a thing. This constitutional objection seems to have succeeded, as House leaders decided on Saturday to take a separate vote on the Senate version, rather than "deeming" it passed.
And finally, on the Health Care Freedom Acts that many states have passed or are attempting to pass:
Several states are considering measures attempting to exempt their residents from an individual health insurance mandate. While such provisions may have a political impact, none is likely to have any effect on the legislation's constitutionality. Under the 10th Amendment, if Congress enacts a law pursuant to one of the "powers . . . delegated to the United States by the Constitution," then that law is supreme, and nothing a state can do changes this. Any state power to "nullify" unconstitutional federal laws has long been rejected.