Posted by | February 8, 2011 11:50 | Filed under: Top Stories

Laurence Tribe, the Harvard constitutional scholar, explains today in the New York Times why the Affordable Care Act is likely to withstand a constitutional challenge.

Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?

If people could opt out of coverage, there would be such high premiums for those left in the pool that it would be impossible not to discriminate against those with pre-existing conditions. For the plan to work, all must participate.

In this regard, the health care law is little different from Social Security. The court unanimously recognized in 1982 that it would be “difficult, if not impossible” to maintain the financial soundness of a Social Security system from which people could opt out. The same analysis holds here: by restricting certain economic choices of individuals, we ensure the vitality of a regulatory regime clearly within Congress’s power to establish.

Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.

Tribe says it would be inconsistent for conservative jurists like Antonin Scalia and Anthony Kennedy to vote against health care reform.

Justice Antonin Scalia, whom some count as a certain vote against the law, upheld in 2005 Congress’s power to punish those growing marijuana for their own medical use; a ban on homegrown marijuana, he reasoned, might be deemed “necessary and proper” to effectively enforce broader federal regulation of nationwide drug markets. To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.

Kennedy’s vote is also not predictable based on past decisions:

…his opinion in the 5-4 decision invalidating the federal ban on possession of guns near schools is frequently cited by opponents of the health care law. But that decision in 1995 drew a bright line between commercial choices, all of which Congress has presumptive power to regulate, and conduct like gun possession that is not in itself “commercial” or “economic”…

It is hopeful that even if justices personally oppose Democrats’ views, the will decide on constitutional, not party, grounds.

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Copyright 2011 Liberaland
By: Alan

Alan Colmes is the publisher of Liberaland.