Senate Hearing Focuses on Constitutionality of Health Reform Law
On February 2, the Senate Judiciary Committee held a hearing on the constitutionality of the Affordable Care Act (ACA), focusing almost entirely on the individual coverage requirement, with three witnesses testifying that this provision is constitutional and two other witnesses arguing that it is not.
The hearing took place just two days after U.S. District Judge Roger Vinson in Pensacola, Florida issued a ruling that struck down as unconstitutional the individual coverage requirement. Because the judge determined that the individual mandate was not “severable” from the remaining ACA provisions, he struck down the ACA in its entirety. It is expected that the Department of Health and Human Services (HHS) will appeal the decision and that the constitutionality of the individual mandate most likely will be decided by the Supreme Court after the courts of appeal review the various district court judgments.
The hearing was chaired by Sen. Richard Durbin (D-IL) who emphasized that many past legislative accomplishments, including the Civil Rights Act and the federal minimum wage, were challenged in the lower courts before they ultimately were upheld by the Supreme Court. Senator Durbin said he believes that the Supreme Court eventually will uphold the ACA.
Sen. Charles Grassley (R-IA), the committee’s ranking Republican member, suggested that Congress should have held hearings on the constitutionality of the ACA before it was enacted. He cautioned that if the Supreme Court ultimately strikes down the individual mandate, it is not clear that the rest of the law can survive. Senator Grassley stated that “the individual mandate is the reason that the new law bars insurance companies from denying coverage based on pre-existing conditions and the sponsors made the mandate the basis for nearly every provision of the law.”
Oregon Attorney General John Kroger defended the constitutionality of the individual mandate, citing data on the amount of charitable care provided by hospitals and the impact that the uninsured have on health insurance premiums. While noting that hospital emergency departments are legally required to provide care to the uninsured, Kroger stated that Americans do not have a constitutional right to force others to pay for their health care.
Charles Fried, a Harvard Law School professor, testified that while he is not sure that the ACA is good policy, he believes the individual mandate is constitutional. He pointed to several prior Supreme Court cases in arguing that the individual mandate is within the scope of Congress’ constitutional authority.
Randy Barnett, a Georgetown University Law Center professor, suggested that prior Supreme Court cases are not relevant, since Congress has never before imposed an economic mandate on the American people. He said that the individual mandate violates the 10th Amendment to the Constitution, which provides that powers not granted to the federal government are reserved to the states or the people.
Michael Carvin, partner at the Jones Day law firm, also argued against the constitutionality of the individual mandate, stating that Congress has never before required people to engage in contractual activity. He acknowledged that insurance is a form of commerce, but questioned whether “inactivity” (i.e., the decision not to buy a product) could be considered to be commerce.
Walter Dellinger, a Duke University School of Law professor, said that the individual mandate is no more intrusive than Social Security or Medicare. He said that Congress has the authority to regulate insurance contracts and that the individual coverage requirement is inextricably linked to the law’s insurance reforms, including new protections for people with pre-existing conditions.
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