IMHO: Why I Think Health Care Reform Will Stand as Law

Let me start by saying 3 things here:

1. The US badly needs some form of health care reform
2. I think that the PPACA (health care reform) was hastily written, poorly debated, and is not the answer
3. I am not an attorney, and until they start admitting people the Bar who have never attended law school or sat for the Bar Exam, I never will be

That having been said, I can read and I can reason, and I do a fair amount of both, although some may claim that my idea of reasoning doesn't qualify. But, I have read the US Constitution many times. Those who have not are missing out on one of the great documents of the last 225 years, so much so that is has seen only 15 changes since original passage (OK, I know that there have been 27 amendments, but 10 were clarifiers in the Bill of Rights and the 18th was repealed by the 21st).

Because I can read and reason, and because this is my blog, I'm going to say why when I get appointed to the United States Supreme Court (OK, I very likely wont be) or if I did, my vote would be to not overturn PPACA (even though as a citizen, I would like to see it overturned and revamped).

My analysis relies [almost] in its entirety on four parts of the Constitution:

1. The 10th Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
2. The Tax Clause of Article 1, Section 8: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;"
3. The Commerce Clause of Article 1, Section 8: "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"
4. The General Welfare Clause of the Preamble: "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

So, what does all this mean? Many have argued that the 10th Amendment precludes PPACA. So, the question is: Is all of PPACA part of the powers delegated by the Constitution? If it is, then it is covered by one of the clauses that I enumerated above. So, let's look at them one at a time.

Does the Individual Mandate of PPACA fall under the Tax Clause? Yesterday, Judge Henry Hudson appeared to have ruled that it does not. He cited that in the original bill language that those who do not have necessary minimum coverage would be subject to a tax, but in the final bill, the word tax was changed to penalty. He cited several cases that give deference to actual language where a different word could have been used. So, why was the language changed from tax to penalty? I suspect that this was an effort to maintain President Obama's pledge that no new taxes be imposed on the middle class.

Does the law in its entirety fall under the Commerce Clause, or if not, do the parts not covered under other clauses fall under the Commerce Clause? This is a tough one. Historically, the courts have construed that virtually everything that involves money and could be construed as crossing state lines falls under the Commerce Clause. Personally, I think this is a load of malarkey. Judicial activism (yes, conservative and liberal judges are equally guilty here) has extended lots of provisions of laws to be part of Interstate Commerce. In fact, there have been whole books written on the oversteps of the Commerce Clause. I certainly don't think that PPACA falls under the intent of the Commerce Clause. Generally, citizens are being asked to have coverage under one of these: Medicare (federal), Medicaid (federal), an employer-provided plan (federal because ERISA preempts state law), or PPACA through a state-maintained exchange. Supporters of the law will say it's covered, but I think they are wrong.

Then there is the General Welfare Clause. I'm afraid that Congress has us here and I hate it. Was the purpose of Congress in passing PPACA to promote the general welfare? I can think of no other reason that it was passed. Opponents will argue (and have) that the Individual Mandate fails for many reasons and that its failure invalidates the entire law. How is this any different though than thousands of other laws that are not covered under the Constitution elsewhere? Consider ERISA, for example. It preempts state law, and under what guise -- that it is best for the general welfare.

I hate it, but IMHO, case closed!