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PPACA: Is it Constitutional?

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WASHINGTON BUREAU – An Affordable Care Act provision requiring individuals to buy health insurance was called tyranny by some and an appropriate government function by others at a recent government hearing.

The provision is supposed to take effect in 2014.

Virginia Attorney General Ken Cuccinelli told the House Judiciary Committee that he believes the U.S. Supreme Court will rule against the constitutionality of the individual mandate.

“It will be close, but I believe they will,” Cuccinelli said.

Another, Randy Barnett, a Georgetown University law professor, predicted dire consequences Capitolwould occur if the court rules in favor of the mandate.

“If this proposition is upheld, I submit, the relationship of the people to the federal government would fundamentally change: no longer would they fairly be called ‘citizens’, instead they would more accurately be described as ‘subjects,’” Barnett said.

In the United States, sovereignty rests with the citizenry, and the government is supposed to be the servant of the people, Barnett said.

Walter Dellinger, a Duke University law professor, called assertions that Congress lacks the authority to impose a mandate “astonishing.”

“When these lawsuits reach their final conclusion, that novel claim will be rejected,” Dellinger said.

Rep. Lamar Smith, R-Texas, the committee chairman, sided with

the mandate opponents.

“The arguments in favor of the constitutionality of the individual mandate are unconvincing and, if accepted, would give the federal government almost unlimited power over Americans’ lives,” Smith said. “In my opinion, the individual mandate is both unprecedented and unconstitutional. We should question any law that appears to violate the Constitution and common sense.”

Other Republicans on the committee contended that if the Supreme Court sustained the provision, it would be the “end of federalism,” because only the size of political majorities in future Congresses would keep Congress from imposing more mandates requiring citizens to buy additional private products.

Democrats rejected that line of reasoning.

“Federalism is alive and well before, during and after this Supreme Court decision,” said Michigan Rep. John Conyers, D-Mich., the highest ranking Democrat on the committee.


Cuccinelli said that he is seeking only repeal of the mandate, not the entire Affordable Care Act package, in his suit.

The Affordable Care Act is the legislative package that includes the Patient Protection and Affordable Care Act (PPACA).

“Despite all of the attention it has received, it should be noted that Virginia’s challenge to the Patient Protection and Affordable Care Act is modest,” Cuccinelli said.

Virginia is not trying to overturn any prior decisions of the Supreme Court or develop any new doctrine, Cuccinelli said.

“Rather, within the boundaries of constitutional text and precedent, we simply seek a determination that, in passing the individual mandate and penalty as part of the PPACA, Congress exceeded the powers granted it by the Constitution,” he said.

“Supporters of the law often make arguments that are not based on the Constitution or on decisions of the Supreme Court, but rather, are nothing more than appeals to address a pressing national problem,” Cuccinelli said. “The argument is that there is a serious problem that must be fixed, and thus, the law must be constitutional because it is an attempt to solve that problem.”

But, “in a society based on the rule of law, such an argument cannot be credited,” Cuccinelli said.