Luke Sharrett/The New York Times/ Charlie Riedel/AP/ Carrie Devorah/WENN.com/NEWSCOM
The Obama administration’s health care reform survived hostile town halls, Tea Party protests, and a year of bitter political combat in the U.S. Congress before it was signed into law in March. But now it faces yet another hurdle: a constitutional challenge to what the administration calls its “linchpin” provision. Rather than providing a single government-administered insurance plan the way Canada does, the Obama reform attempts to achieve near-universal coverage by requiring all Americans to buy private health insurance for themselves and their families. Individuals who cannot afford to pay premiums will be subsidized by the government; those who fail to do so will be fined up to US$750. This so-called “individual mandate” begins to phase in in 2014.
The Obama administration says the individual mandate is necessary to control health care costs for everyone. As long as health insurance remains optional, the young and the healthy will avoid paying in, and insurance companies will charge more to cover the relatively older and sicker population. And, without the mandatory coverage provision, other parts of the law—such as a ban on denying coverage based on pre-existing medical conditions—wouldn’t work either, because they would encourage individuals to wait to purchase health insurance until they needed care, which in turn would shift even greater costs onto everyone else.
But opponents of the bill aren’t arguing over its mechanics. When the law was being debated in Congress, they charged simply that nothing in the U.S. Constitution gives the federal government the power to force individuals to buy something. Republican Sen. Jim DeMint of South Carolina called it an “arrogant power grab” and a “trillion-dollar assault on our freedoms.”
After the law was passed, attorneys general in 21 states sued the federal government, arguing that Congress exceeded its constitutional powers. Their critique was dismissed by supporters of the reform as extremist. Democratic Sen. Patrick Leahy of Vermont, chairman of the Senate judiciary committee, denounced what he called “misleading arguments and spurious attacks” that would “stand the Constitution on its head.” “I think there’s pretty longstanding precedent on the constitutionality of this,” said White House spokesman Robert Gibbs. But last week, in one such lawsuit, a federal judge in Richmond, Va., ruled that the issue is far from settled. In doing so, he re-energized a political movement at the state level that seeks to exempt swathes of the country from application of the health care law and to roll back Obama’s signature achievement.
Voters in Missouri voted overwhelming in a referendum last week in favour of the state’s Health Care Freedom Act, which would purportedly exempt the state from the individual mandate—reviving the arguments over whether states have the power to nullify federal laws that had seemed to be settled by the Civil War. Several states have passed similar legislation, and some others, including Arizona and Oklahoma, will put the issue to a vote on the ballot on Election Day in November.
Virginia’s attorney general, Kenneth Cuccinelli, launched his lawsuit as soon as the law was signed in March. He argued that the health care mandate is not authorized by any of the specific federal powers spelled out in the U.S. Constitution, which reserves general lawmaking powers to the states. A former Republican state senator, Cuccinelli has also challenged the right of the federal government to regulate greenhouse gases, denied legal protections to gays and lesbians, and authorized law enforcement to check the immigration status of anyone they stop. The Obama administration responded that the law falls clearly under the federal power to regulate interstate commerce and asked the judge to dismiss the suit on the grounds that the case was so weak there was no point in holding a trial. But on Aug. 2, U.S. district judge Henry Hudson declined to dismiss the case. In a written opinion, he said the power of Congress to force individuals to buy health insurance was far from obvious, and there would be plenty to litigate.
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