Yesterday a friend asked me my take on the fate of the law. The answer is I can't say, as it all depends on the Court's interpretation of provisions in the constitution, namely, the Commerce Clause and the Necessary and Proper Clause. I found that this New York Times article provided a very clean and crisp explanation of why people are challenging the law, as well as the merits and shortcomings of those challenges. The main argument lies in the law's mandate to purchase health insurance, and it essentially boils down to this:
- Commerce Clause: The power for congress to regulate commerce does not mean it can force people to purchase things, unless you are in a voluntary commercial relationship. A good example of this is the Medicare payments coming out of our paychecks - when an individual agrees to employment, they are entering a commercial relationship that is deemed "regulatory-worthy." However, as NYT contributer Einer Elhauge aptly points out, "Even if you accept this distinction, it means that Congress can madate the purchase of health insurance as long as it conditions that mandate on the engagement in some commercial activity...and it is hard to believe that anyone in this nation has never bought of sold anything in his life." Yikes.
- Necessary and Proper Clause: This clause gives congress the authority to pass any law that is "rationally related" to the execution of a constitutional power. Since there are parts of Health Reform considered constitutional (e.g. requiring payors to insure the extremely sick and limiting premiums), and without a mandate they would not be executable (plans need more healthy people to buy their products to spread risk), Congress is authorized under the Necessary and Proper Clause to mandate the purchase of health insurance
