Legal Experts Weigh In On Health Care Debate
The individual mandate is just one of four questions brought before the court by the law’s challengers, which include 26 states led by Florida. Other questions consider whether an old statute prevents the court from ruling on the issue now, whether the whole law is unconstitutional if the individual mandates are struck down, and whether the Medicaid expansion violates state sovereignty under the 10th Amendment.
Erwin Chemerinsky, dean of the law school at UC Irvine, said the legal arguments behind both supporting and opposing the individual mandate’s constitutionality are rooted in Congress’ ability to regulate interstate commerce.
“The Supreme Court has said that Congress can regulate economic activities that, taken cumulatively, have a substantial affect on interstate commerce,” Chemerinsky said Monday.
The mandate’s detractors claim that no economic activity is taking place when individuals chose not to buy insurance.
“Those who argue it is unconstitutional say people who aren’t buying health insurance aren’t engaged in economic activity—that Congress is regulating inactivity,” Chemerinsky said.
On the flipside, the defenders of the mandate maintain say it's constitutional because "everyone is engaged in economic activity,” Chemerinsky said. “They are buying health insurance or they are self-insuring. There is no alternative there.”
Chemerinksy said he believes the argument in favor of upholding individual mandates was stronger and more likely to win.
“The last case under the commerce clause said Congress could constitutionally regulate a women growing marijuana for her own home consumption under its commerce power,” Chemerinsky said. “If Congress can regulate Angel Raich growing marijuana for her own personal use, surely Congress can regulate a $2.6-billion industry.”
Alex Capron, a professor at the USC Gould School of Law and co-director of the university's Pacific Center for Health Policy and Ethics, said if the individual mandate were struck down, the legal consequences would concern the interpretation of the commerce clause.
“If the individual mandate is struck down, we would have, depending on how exactly they describe what’s wrong with it, a better understanding of the limits of the commerce clause are,” Capron said.
As to the question of whether portions of the law would stand if the individual mandate is struck down, Chemerinsky said he predicts, in such a case, the court would not overturn the entire law. Chemerinsky said the decision to uphold or strike down the entire law comes down to congressional intent.
“Would Congress have adopted this law without the provision that has been declared unconstitutional?” he said. “On one hand, this law has so much that has nothing to do with the individual mandate: controlling Medicare costs, nutrition disclosure in chain restaurants, healthcare for Native Americans. On the other hand, there is no doubt that the individual mandate was the linchpin to this. My prediction is that, if the court strikes down the individual mandate, they will not strike down the whole law.”
Capron said he believes the whole law would need to be overturned if the individual mandate is struck down.
“I think that the district court in Florida, which had said that the whole statutory scheme is like a finely crafted watch and the pieces are inextricably connected was right,” Capron said. “It struck down the individual mandate and it therefore said the whole law had to fall.”
In the coming days, many will look for clues about the justices’ positions on the case.
“It’s a little bit like reading tea leaves,” Capron said.
However, Capron said listeners of the arguments can recognize which justices have not decided how they'll rule by listening for what they are still trying to work out.
“Those whose minds are not already made up are looking for help in making a decision, so they will express the puzzles they have,” he said.