While the federal courts consider whether the health care reform law is constitutional, there is an intense and even wider debate playing out in political and legal circles about the Constitution and Congress’s power to solve national problems.
At a Senate Judiciary Committee hearing last week on the reform law, two witnesses argued fiercely opposing views. Walter Dellinger, a former acting solicitor general under President Bill Clinton, made a compelling case for the law’s constitutionality. He said that the commerce clause was the main source of Congress’s power for regulating the nation’s economy, an argument going back to Chief Justice John Marshall.
Randy Barnett, a Georgetown law professor, made a countercase based on what he calls “the lost Constitution,” an interpretation that would limit much of that basic law, including the commerce clause.
He made plain that his attack on the health care statute is a means to severely limit the power of Congress, urging senators to reach their “own judgment about the scope of Congressional powers,” regardless of “how the Supreme Court” has ruled.
To Prof. Dellinger, the Constitution’s commerce clause gives Congress broad authority to regulate economic activity crossing state lines if the regulation is necessary and proper. The statute’s linked provisions prohibiting companies from denying coverage to people with pre-existing conditions and requiring most Americans to have minimum coverage fit that understanding.
Prof. Barnett contends that the mandate goes beyond regulating health insurance by regulating “inactivity” and penalizing people who refuse to buy insurance. He said that giving government that power would allow it to compel virtually anything.
We disagree, and so do years of judicial precedent. The Constitution contains limits on improper mandates by preserving a wide range of personal choices. And while the idea of penalizing people for not acting sounds ominous, it inaccurately describes the problem. When people don’t buy health insurance — because they can’t afford it or think they don’t need it — the cost of treating them falls on the national economy.
Prof. Dellinger explained how one of the biggest controversies in American law can be resolved by applying mainstream understanding of the Constitution. Of the mandate, he concluded, “Will it lead to some extraordinary expanse of congressional power? It will not.”
Prof. Barnett left no doubt that he was promoting a broader agenda. If the mandate is upheld, he warned sensationally, “Congress would have all the discretionary power of a king and the American people would be reduced to its subjects.” His re-reading of the Constitution would remove that made-up peril. Based on no good reason, it would also fundamentally weaken government’s ability to address many of the nation’s most serious problems.
At a Senate Judiciary Committee hearing last week on the reform law, two witnesses argued fiercely opposing views. Walter Dellinger, a former acting solicitor general under President Bill Clinton, made a compelling case for the law’s constitutionality. He said that the commerce clause was the main source of Congress’s power for regulating the nation’s economy, an argument going back to Chief Justice John Marshall.
Randy Barnett, a Georgetown law professor, made a countercase based on what he calls “the lost Constitution,” an interpretation that would limit much of that basic law, including the commerce clause.
He made plain that his attack on the health care statute is a means to severely limit the power of Congress, urging senators to reach their “own judgment about the scope of Congressional powers,” regardless of “how the Supreme Court” has ruled.
To Prof. Dellinger, the Constitution’s commerce clause gives Congress broad authority to regulate economic activity crossing state lines if the regulation is necessary and proper. The statute’s linked provisions prohibiting companies from denying coverage to people with pre-existing conditions and requiring most Americans to have minimum coverage fit that understanding.
Prof. Barnett contends that the mandate goes beyond regulating health insurance by regulating “inactivity” and penalizing people who refuse to buy insurance. He said that giving government that power would allow it to compel virtually anything.
We disagree, and so do years of judicial precedent. The Constitution contains limits on improper mandates by preserving a wide range of personal choices. And while the idea of penalizing people for not acting sounds ominous, it inaccurately describes the problem. When people don’t buy health insurance — because they can’t afford it or think they don’t need it — the cost of treating them falls on the national economy.
Prof. Dellinger explained how one of the biggest controversies in American law can be resolved by applying mainstream understanding of the Constitution. Of the mandate, he concluded, “Will it lead to some extraordinary expanse of congressional power? It will not.”
Prof. Barnett left no doubt that he was promoting a broader agenda. If the mandate is upheld, he warned sensationally, “Congress would have all the discretionary power of a king and the American people would be reduced to its subjects.” His re-reading of the Constitution would remove that made-up peril. Based on no good reason, it would also fundamentally weaken government’s ability to address many of the nation’s most serious problems.
