GOP's Challenge to Health Care Reform

Imagine for a moment, a sudden outbreak of smallpox (variola weaponized, if your taste runs to Jack Bauer-style script). Airborne, a highly contagious, deadly, she has the ability to spread throughout the country and beyond in the coming weeks, if not on the program of vaccination - vaccination for a bit, but for everyone, as soon as possible. Simply me to provide answers

Would you want a judge to stop the program on the grounds that not getting vaccinated was "inactive" and thus beyond Congress's power over "regulate commerce with foreign nations, and among the several states and with Indian tribes?" Those who refused vaccination could serve as reservoirs of disease, and thus affect trade. What if the judge conceded that point, but said Congress still could not reach them because they are not voluntarily in the stream of trade?

What if the judge blocked the program because Congress relied on private medical staff for vaccination? Congress could create a program that thousands of full-time federal employees make vaccines - that would be constitutional - but uses the non-employed made ​​the program unconstitutional. Would it make sense?

While the disease has spread, hundreds or even thousands died, would you thank the referee for his faithfulness in the pre-1937 vision of the Commerce Clause? Or would you think that no matter what is written in the order of a judge, check the spread of the epidemic really affected trade, and had to be stopped?

These reflections are prompted by the decision Monday in the case of Virginia v. Sebelius, in a lawsuit brought Ken Cuccinelli, Virginia's right-wing fanatic, a lawyer, to spare their country an insult to the uninsured government funded health care. Judge Henry Hudson in the United States District Court for the Eastern District of Virginia agreed with Cuccinelli that so-called "individual mandate" provision of the Act exceeds the Commerce Clause because it seeks to "compel an individual to inadvertently enter the flow of trade by buying goods in the private market."

For those of you scoring at home, and is currently an affordable health care Act 2, right-wing opponents of the first Two federal district courts have upheld the program, Judge Hudson was the first district judge to hold against him. That's neither here nor there - the final result will almost certainly be a best-of-nine series championships played here in Washington for the Supreme Court. But it does point out that the issues in the case at hand. weight of academic opinion and now supports a law, but some of the very brightest (and perhaps not coincidentally most conservative) of my colleagues disagree.

I think, however, that Judge Hudson's opinion is wrong. Painfully wrong. Threat-to-the-nation-of-rampaging-pox was wrong.

Here's why I think so. The argument that "inaction" is beyond the scope of Commerce Clause sounds reasonable. This is because, like most serious mistake, this is half true. Last summer, Senator Tom Coburn asked the Supreme Court nominee Elena Kagan whether Congress could require individuals to eat vegetables three times a day.

brazen Kagan said, "Sounds like a stupid law." A law that requires eating vegetables (or joining a gym, or to subscribe to the newspaper) is a really stupid law. There is no comprehensive national need behind it. It is hard to imagine Congress argue with a straight face that plant parts are urgent, or that they need to be regulated as part of a comprehensive scheme.

Health care is such a necessity. Before the Republicans come up with the argument that health care is part store, they harped for years about the dangers of regulating "one sixth of the economy." After years of debate (more than half a century, in fact) and an extensive fact-finding, Congress has decided that health care can only be provided effectively through the program nationwide.

Ironically, Republican opponents concede that if Congress had passed mandatory program funded by payroll tax and income tax - a kind of Medicare for all ages - their challenge will have no merit. (In the case of soft Cuccinelli later decide to reverse the field, I personally saw him say it on October 21, 2010, in Washington Legal Foundation.) these taxes will of course be less obligatory than "mandate". But Congress in part relying on the private market (which in other contexts, Republicans defend rhapsodically) somehow hoses nation can solve its problem of health care.

Well, everybody's got to have an argument, a law is settled on this one. However, conservatives should be careful what you wish for. Any constitutional decisions that are judged not only (or even primarily) for the specific facts of the matter, but the potential harm of the precedent will be set. The decision reverses an act of health care will strike at the heart of our nation's ability to deal with situations such as my hypothetical smallpox.

Wait a minute, you say, healthcare regulation is not like a smallpox epidemic. No? Certainly, health care is a life and death issue for millions of Americans, including many that will be provided under the law, but will fall through the cracks in the current system. Who could seriously argue that 50.7 million people currently have no health care does not constitute an emergency?

judge to strike down the Act, has concluded that no reasonable Congress could conclude that the situation needed at the national level, comprehensive regulation. And that no Congress could reasonably conclude that the "mandate" is a key part of a comprehensive program to ensure almost universal coverage. Because if both of these things are true, then the "inaction" for refusing to reasonably care to prepare for the individual health needs as potentially harmful as "inactivity" refusal of vaccinations at the time of the epidemic.



"inaction" argument depends on the idea that the Constitution forbids the United States of running a modern economy, in which we are all concerned on the basis of our membership in the nation. As in any highly industrialized country, we're all in this together. And if we adopt the minimum old-fashioned view of the national government, we will have confirmed that the 21st century, America has taken the fall over economic leadership.

I do not make predictions. Judge Hudson logic may very well prevail - especially if the conservative majority on the Supreme Court, a year or two hence, can not resist the temptation to deliver a knockout blow to the President they despise. However, such a decision would sow evil in at least two ways. First, pull this country its first modern health system to deform the Constitution, restore the cause of effecting the legislative governments, and the spread of suffering over decades or even generations.

May it do not matter so much for those who make decisions. Federal judges, such as state attorneys general, covered by generous health insurance programs, and can not feel the whole thing is such a big deal. And our current judges do not make a secret hiding their contempt for America's law.

But if history teaches us anything, it teaches us that emergencies come as a thief in the night, and when that happens, we seem to have the government intervene powerful tool to keep people may need to prevent catastrophe. Throwing away these tools would be an even greater evil.

If the United States finds the powers of Congress gutted because partisan dispute, we will one day have reason to regret it.