Health Care Law Attracts Constitutional Arguments

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STEVE INSKEEP, host:

It's MORNING EDITION from NPR News. Good morning, Im Steve Inskeep.

DON GONYEA, host:

And Im Don Gonyea.

Let's listen to the constitutional argument now underway over the Health Care Law.

A federal judge found a portion of the law unconstitutional this week. Two other federal judges have upheld that same provision.

INSKEEP: Since it may take some time for the Supreme Court to eventually sort this out, we've arranged our own discussion now. We've brought back two men who've argued before the High Court and who've also guided us through legal issues in the past. Both served as solicitor-general, in effect, the U.S. government's lawyer.

Paul Clement served under President George W. Bush. He's on the line from Virginia. Welcome back to the program.

Mr. PAUL CLEMENT (Former Solicitor General): Thanks. It's good to be back.

INSKEEP: And Walter Dellinger served President Bill Clinton in the same capacity. Welcome to you, sir.

Professor WALTER DELLINGER (Former Solicitor General): Thank you.

INSKEEP: Let's just remember here. It's a little complicated here, this. We're talking about one part of this giant law, but it is a central part. It's the requirement that Americans buy health insurance by the year 2014. The judge says it violates the Commerce Clause of the Constitution.

Walter Dellinger, why dont you start? What does the Commerce Clause say and how does it apply to this law?

Prof. DELLINGER: It says Congress shall have the power to regulate commerce among the several states. And it is indisputably the case, no one is disputing, that Congress can regulate the national health insurance market and can do so, for example, by forbidding insurance companies from denying coverage based upon preexisting conditions - of course, your child is born with a defect, Congress has done that.

But Congress also knew, to make that workable, you had to provide some economic incentive for people to buy insurance. If you couldn't be denied coverage, you could wait and by your insurance on the way to the hospital...

INSKEEP: Sure. Sure.

Prof. DELLINGER: ...on your cell phone.

INSKEEP: Right.

Prof. DELLINGER: So therefore, Congress thought that was necessary, to make this workable, and that's why Congress enacted it.

INSKEEP: So we've got the clause of the Constitution. It's fairly short, but it's been a huge its application because it gives Congress the right to regulate all sorts of businesses.

Paul Clement, what is the argument that it would not give Congress the power to make this particular regulation in health care?

Mr. CLEMENT: Well, I think that the problem that government always has in defending challenges under the Commerce Clause is telling the courts what's the limiting principle. Because, as Walter says, the Constitution enumerates certain powers of Congress. And of all of those powers, probably the broadest power is the Commerce Clause power - at least as it has been interpreted by the Supreme Court.

But the Supreme Court never wants to have the government say that the Commerce Clause gives the federal government plenary power to regulate anything it wants.

INSKEEP: Anything having to do with money, for example. Just anything at all, having to do with your pocketbook - that would be too much.

Mr. CLEMENT: That would be too much. So the government always asks for a limiting principle. And I think the problem for the government, the challenge for the government, is that if you can force somebody to buy health care on the rationale that you're essentially forcing them into the commercial market, would that same principle apply to every other commercial transaction?

So the government, if it has a problem here - and the reason I think the reason failed to convince Judge Hudson, is that I think they have trouble articulating a limiting principle. They certainly have tried, and tried to describe the health insurance market as different from other markets. But I think that's the challenge for the government.

INSKEEP: Okay, Walter Dellinger, what's the limiting principle? If this law is constitutional, what would prevent it from being just absolutely going too far - the principle?

Prof. DELLINGER: The limits of the Commerce Clause, I think, are a not reached by this case, just because it said to involve the regulation of, quote, "inactivity." That is not buying insurance because this is, as Paul says, the government argues, a unique market. There is no other product were you simply cannot say I will never use that product. That's not possible. You never know when he'll be struck down and go to the hospital. So it really is a regulation of how you go about paying for it.

Congress has, for example, required every American to purchase into the Medicare program, for their coverage when their senior citizens, from the government. Here, they decided to use a more conservative approach of having people enter into the private market or pay a tax penalty. That's all this provision does.

And, Steve, here's how it's different from any other product. If I don't buy a flat screen television, and it turns out that my teammates makes the Super Bowl, I can't run into some store and say you have to give me a flat screen television.

(Soundbite of laughter)

Prof. DELLINGER: But in our country, under the Emergency Medical Treatment Act and our culture, we do provide people with health care. We just make somebody else pay for it. And that's a fundamental difference between this and any other requirement to purchase a product.

INSKEEP: Ive just got a few seconds left and Im going to go, very briefly, to each of you. Paul Clement, do you see any way this case would stop short of the United States Supreme Court?

Mr. CLEMENT: I think the only one that it stops short of the Supreme Court is if every court of appeals that hears this case - and there's at least three and that will hear it in different parts of the country - if every court of appeals that heard this upheld the law, I don't know that it's a foregone conclusion that the Supreme Court would hear the case. But otherwise, it's going to get there.

INSKEEP: Walter Dellinger, a couple of seconds here.

Prof. DELLINGER: I agree.

(Soundbite of laughter)

INSKEEP: Very simply, it may very well be going to the highest court in the United States.

Thanks very much to you both. Walter Dellinger, former solicitor general under President Clinton, thanks to you. And Paul Clement, former solicitor general under President Bush, thanks to you as well.

Mr. CLEMENT: You bet.

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