Friday, October 23, 2009

Health reform IS constitutional

You may have heard the argument that Congress has no power under the Constitution to require Amercians to purchase health insurance. They are wrong says Erwin Chemerinsky, dean and distinguished professor of law at the University of California, Irvine School of Law. Chemerinsky makes the following points:

Congress clearly [can compel people to purchase health insurance or pay a fine] under its power pursuant to Article I, Section 8 of the Constitution to regulate commerce among the states. The Supreme Court has held that this includes authority to regulate activities that have a substantial effect on interstate commerce…Under an unbroken line of precedents stretching back 70 years, Congress has the power to regulate activities that, taken cumulatively, have a substantial effect on interstate commerce. People not purchasing health insurance unquestionably has this effect.

Chemerinsky notes that health care expenditures have a strong impact on the nation’s economy consuming over 16% of gross domestic product. Additionally everyone will need medical care at some point which means that there is a potential cost to the system and Congress has the power to require everyone to be insured to cover that cost. Congress can justify this as an exercise of its power to tax and spend.

Congress can require the purchase of health insurance and then tax those who do not do so in order to pay their costs to the system. This is similar to Social Security taxes

Furthermore, says Chemerinsky, you have no consititutional right NOT to have insurance so health reform can health reform does not violate individual liberties or any constitutionally protected freedoms.

Finally, Chemerinsky notes that since the 19th century the Supreme Court has “consistently held that a tax cannot be challenged as an impermissible taking of private property for public use without just compensation.”

Sorry you folks who don’t like health reform, whatever you may have heard it IS constitutional.

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