Constitution does not forbid health care bill, says legal expert

Supreme Court should reject the challenge ‘without breaking a sweat’

The Supreme Court should affirm the constitutionality of the Affordable Care Act, contends Washington University in St. Louis law Professor Greg Magarian, JD, because the act fits comfortably within a proper understanding of the federal-state balance of power.

Magarian, a constitutional law expert, says the basic argument against the constitutionality of the health care bill is that some parts of the bill, most notably the requirement that people purchase health insurance, exceeds Congress’ power to regulate interstate commerce.


“This argument has two levels to it,” he says. “The first has to do with precedent: the court over the past 15 years has found two congressional acts, one that banned possession of guns near schools, and another that created a civil cause of action for victims of rape and sexual assault, to exceed the Commerce Power.

“The second is related but has to do with first principles of constitutional law: allowing the federal government to do what it has done here simply encroaches too far on state power.”

Magarian says that the first level of the argument is fairly easy to get past.

“The two cases I referred to, United States v. Lopez and United States v. Morrison, involved narrow federal laws that the court found not to have anything to do with economic matters and thus not to have any bearing on interstate commerce,” he says.

“The health care bill obviously isn’t like that. Health care is an interstate market; health insurance is an interstate market,” Magarian says.

“This is, by its critics’ own account, a huge piece of legislation with broad sweep and enormous consequences. It simply isn’t anything like the laws struck down in Lopez and Morrison.”

According to Magarian, what is unusual about the health care bill is that it requires people to buy commercial insurance.

“The federal government has never really done this before,” he says. “State governments do it for auto insurance, so the argument goes that this is something that is appropriate for states to do, but not the federal government.

“That argument, however, doesn’t make logical sense. Purchasing insurance is commerce. I’m quite confident that, as a matter of constitutional law, the federal government could take over auto insurance regulation. That wouldn’t be very practical, but Congress could do it, because there’s nothing about a purchase mandate that exceeds the concept of ‘interstate commerce.’

“A purchase mandate may offend libertarians as a matter of individual rights; but of course that offense should apply just as strongly to state requirements that people purchase auto insurance.”

Magarian says that the argument that this bill simply goes too far in encroaching on state authority is a harder argument to resolve, because of course it’s completely relative.

“The important point here is that the Constitution doesn’t squarely answer the question of how far federal power can go,” he says.

“The Constitution enumerates the powers of Congress, but the most important of those enumerated powers, the power to regulate interstate commerce, has grown almost all-encompassing by its own terms. If you take the commerce power on its own terms, the health care bill passes constitutional muster easily, for the reasons I described above.

“But if instead you’re committed to the idea that the structure of the Constitution somehow implies specific limits on how we can construe the enumerated powers of Congress, then maybe this goes too far. This is ultimately a political argument, and it’s a political discussion that we need to have at critical moments.”

Magarian objects to the challengers’ argument that the Constitution clearly forbids the health care bill.

“That’s just unsustainable,” he says. “If the Supreme Court strikes down the health care bill, it will be a deeply political decision. I’m not saying that exceeds the Supreme Court’s power, but I think we need to acknowledge the political essence of the challenge if we’re going to have an honest discussion of it.

“I take the commerce power at face value, so I believe the court should reject the challenge and sustain the health care law without breaking a sweat.”