After the new health-care law was deemed unconstitutional by a federal judge yesterday, Attorney General Eric Holder and Health and Human Services Secretary Kathleen Sebelius make the following argument for its legality in a Washington Post op-ed:
Opponents claim the individual responsibility provision is unlawful because it "regulates inactivity." But none of us is a bystander when it comes to health care. All of us need health care eventually. Do we pay in advance, by getting insurance, or do we try to pay later, when we need medical care?
The individual responsibility provision says that as participants in the health-care market, Americans should pay for insurance if they can afford it. That's important because when people who don't have insurance show up at emergency rooms, we don't deny them care. The costs of this uncompensated care - $43 billion in 2008 - are then passed on to doctors, hospitals, small businesses and Americans who have insurance.
As two federal courts have already held, this unfair cost-shifting harms the marketplace. For decades, Supreme Court decisions have made clear that the Constitution allows Congress to adopt rules to deal with such harmful economic effects, which is what the law does - it regulates how we pay for health care by ensuring that those who have insurance don't continue to pay for those who don't. Because of the long-held legal precedent of upholding such provisions, even President Ronald Reagan's solicitor general, Charles Fried, called legal objections to the law "far-fetched."
Constitutional theories are clashing over this provision (Judge Hudson warns, of an overactive government and ominous precedents established by allowing this law to stand), and it now seems more likely that the Supreme Court will eventually have to weigh in on the new health care law, after federal judges have differed on whether Congress, as part of its enumerated power to regulate interstate commerce, can force people to buy insurance.
Does the interstate economy of health insurance include those who do not purchase it, and, since their non-purchase affects the market, can Congress regulate that non-purchasing? As Sebelius and Holder point out, there are more cases attacking the new law, so we may hear different opinions before the matter is ultimately closed.