Top Constitutional Law Expert Erwin Chemerinsky: The New Health Care Law is Clearly Constitutional

Let the litigation begin! Attorney generals from 13 states are suing the Federal Government to challenge the new health care law signed by President Obama. The lawsuit argues:

“The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying health care coverage.”

I reached out to leading Constitutional Law authority Erwin Chemerinsky at UC Irvine School of Law to get some insight into whether the States have a legitimate case …

Damien Hoffman: Dean Chemerinsky, is the new health care law constitutional?

Erwin Chemerinsky: I think that it is clearly constitutional. The main argument against it is that it does not fit within Congress’s powers.

Under the commerce clause, in Article I, section 8, Congress can regulate economic activity that has a substantial effect on interstate commerce. Buying health insurance is economic activity. Looked at cumulatively across the country there is an enormous effect on the economy. The “necessary and proper clause” gives Congress the power to enforce this. Besides, Congress surely could tax everyone to pay for health care. Congress then could tax those who do not purchase health insurance.

Underlying this is some notion of a right to not buy health insurance. No such right exists; nor has any right been recognized that is remotely relevant. This is economic activity and since 1937 it has been clear that Congress can regulate economic activity so long as it acts reasonably. Everyone will likely need medical care at some point. Congress can require that all pay for it.

Damien: Thank you very much for these initial insights.

Chemerinsky: Your welcome.

Do you think the new health care law is constitutional? Let us know in the comments below …

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