Two separate groups are challenging the constitutionality of the Patient Protection and Affordable Care Act and asking for its repeal.
The U.S. Citizens Association, an Ohio-based conservative organization with more than 23,000 members, filed a lawsuit in Federal District Court in Akron, OH to repeal the health care bill signed into law in March. Meanwhile, 17 state attorneys general across the United States are claiming that health reform violates the 10th Amendment and the commerce clause of the Constitution.
The U.S. Citizens Association believes that the PPACA violates First Amendment rights. It claims that the First Amendment guarantees citizens the right to “not associate” with anybody they choose not to – including health insurers and their agents.
The association is also questioning privacy issues and the invasion of personal liberty. It believes that the new law provides for a tax penalty not authorized by the Constitution – an illegal direct excise tax on a non-activity. This is not a tax on property or income, and as an excise tax, it was not apportioned according to the Constitution.
Both the attorneys general and the U.S. Citizens Association are arguing that the health reform law directly violates the commerce clause of the Constitution, which gives Congress the power “to regulate commerce . . . among the several states.” Generally, insurance contracts haven’t been considered commerce; in the past, commerce referred to trade and carriage of merchandise. That’s why insurance is regulated by states. But the Supreme Court has long allowed Congress to regulate and prohibit all sorts of economic activities that are not technically commerce. The key is that those activities substantially affect interstate commerce – and that’s how the court would see the regulation of health insurance.
But the big difference in this case is that the individual mandate extends the commerce clause’s reach beyond economic activity, to economic inactivity - an unprecedented show of power. This will mark the first time that Congress will mandate that a private, individual person take part in a financial transaction with a private company.
Do either of these groups have a fighting chance? That remains to be seen. Of all the U.S. Citizens Association’s claims, certainly the argument for the commerce clause is the strongest. However, opponents have argued that the U.S. health care system is a national entity, and therefore the PPACA does not violate the commerce clause, which states that Congress has jurisdiction only over matters of interstate commerce.
The most interesting thing to remember about this is that, while the arguments may have some merit, the PPACA was quite a close vote. Before anybody makes a decision about the constitutionality of health reform, the political makeup of Congress might completely change. Supreme Court decisions and groundbreaking legislation don’t happen overnight, after all. The only thing we can really know is that health reform isn’t set in stone just yet.
Heather Trese is the associate editor of the Agent’s Sales Journal. She can be reached at 800-933-9449 ext. 225 or [email protected]