New York Times Editorial: Health Care Reform and the Courts

May 20, 2010

The New York Times published this the following on May 19, 2010:

The number of states jointly suing to overturn the new health care reform law on constitutional grounds swelled to 20 last week. It is the latest example of conservatives’ determination to thwart reforms that will do enormous good — and the latest reminder that politicians will continue to posture and demagogue the issue through the November elections and beyond.

The lawsuit, filed by state attorneys general and governors, all but one a Republican, seeks to overturn two central elements of the law: a mandate that virtually everyone obtain insurance or pay a penalty; and a big expansion of Medicaid, the state-federal insurance program that covers the poorest Americans. The suit contends Congress has no constitutional power to compel people to make purchases from a private company and that the required expansion of Medicaid is an “unprecedented encroachment” on the sovereignty of states.

Not surprising, many of the officials behind these suits are running for re-election or higher office. The lead plaintiff, Florida’s attorney general, Bill McCollum, is seeking the Republican nomination for governor. His campaign Web site urges voters to tell Washington that “expensive big-government health care is a violation of our nation’s Constitution and we won’t stand for it.”

The Obama administration has yet to file a response. It has responded to private litigation filed in a Federal District Court in Michigan by the Thomas More Law Center, a conservative Christian nonprofit law firm, and four individuals.

The group’s brief — which pointedly named Barack Hussein Obama as a defendant — contends it will be a hardship for the plaintiffs to buy insurance they don’t want or pay monetary penalties. It charges that Congress exceeded its authority under the Constitution by requiring, for the first time, that people buy something simply because they reside legally in the country.

The Justice Department first challenged the timing of the suits. It pointed out that the plaintiffs have filed suit “four years before the provision they challenge takes effect, demonstrate no current injury, and merely speculate whether the law will harm them once it is in force.”

The department argued that Congress can impose and enforce the mandate under its powers to regulate interstate commerce and to tax and spend to provide for the general welfare.

The law center had argued that people who refuse to buy insurance are not engaging in activity that affects interstate commerce, but choosing not to engage in such activity. The Justice Department replied that even refusals to buy insurance can, in the aggregate, have a substantial effect on interstate commerce.

If people without insurance need costly medical care and can’t pay, they typically get cared for anyway. The cost is shifted to hospitals, which in turn shift some of the costs to privately insured patients and to taxpayers who help subsidize the hardest hit hospitals.

Most important, a mandate is deemed essential to the effective functioning of individual health insurance markets that are clearly part of interstate commerce. If the healthiest people are allowed to opt out, the average premiums will escalate and make insurance increasingly unaffordable for everyone. These are novel but persuasive arguments that deserve deference from the courts.

The Justice Department also contended that Congress has the power to raise taxes for the general welfare and that the penalty for not buying insurance is effectively a tax and will generate revenues to help support the reform effort.

The states’ lawsuit raises similar arguments against the mandate and also contends the reform law is an encroachment on state sovereignty because it requires states to greatly expand Medicaid programs.

Congress has long required states to cover specified groups of people up to specified levels of income. Extending those requirements is consistent, and is in no way an “unprecedented” encroachment on state affairs.

We believe the reform law has been carefully framed to stay within constitutional bounds. We are certain it will contribute to the nation’s overall welfare by covering tens of millions of uninsured Americans and taking steps to improve the quality and lower the cost of medical care. We hope these suits stumble over procedural hurdles. If they go forward the courts should rule against the states and allow the reforms to proceed.