Colorado Attorney General John Suthers joined a lawsuit yesterday targeting Federal health reform legislation on constitutional grounds. The argument against the legislation that passed Sunday is compelling: the government can’t force citizens to pay for a product they may not want. Except the government can and it has done in the past and those powers have been upheld in the courts.
As the New York Times points out this morning, the mandate to buy insurance is carefully structured as a tax and the courts won’t strike down the government’s right to tax. Likewise, the government’s broad powers to regulate interstate commerce are on the side of the legislation. The paper talks to Jack M. Balkin, a professor of constitutional law at Yale University.
in 2005, the Supreme Court ruled that Congress could prohibit medical marijuana, despite some state laws that allow it. The people who had filed suit argued that they had not bought the marijuana, but the Supreme Court said the Commerce Clause still applied.
“In both cases, the Supreme Court said the cumulative effect of your attempt not to participate in the market has an effect on markets — and we can regulate it,” Professor Balkin said.
Personal freedoms– like the freedom not to purchase health insurance– are often infringed upon. One of the Times legal sources, Erwin Chemerinsky, a constitutional scholar and dean of the University of California, Irvine School of Law, points to the Civil Rights Act of 1964, which required private hotels and restaurants to serve black people.
“If the court stays true to its Commerce Clause jurisprudence of the last 15 years,” Professor Chemerinsky told the Times, “I think this will be upheld.”