Saturday, March 24, 2012


Republicans Use Commerce Clause to Justify Their Own Health Care Legislation

Ken O’Brien

On Monday the U.S. Supreme Court will begin an unprecedented three days of oral arguments on the constitutionality of the Affordable Care Act (“Obamacare”).

One of the key components of the Act is the “individual mandate” requiring all citizens to have health insurance.

In the prior week the Republican-dominated House of Representatives found themselves on the edge of an abyss that would have undermined the challenge of this component of the Act.

Supporters of Obamacare have maintained, among other reasons, that the individual mandate is valid under the Commerce Clause of the U. S. Constitution.

In the last week the House of Representatives was completing action on H. R. 5 introduced by Representative Phil Gingrey, Republican of Georgia, in May 2011.

Titled the Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act, H. R. 5 would substantially change the laws of the land as they apply to lawsuits against medical professionals (so-called “tort reform”) as well as repeal the Independent Payment Advisory Board (IPAB) established under the Affordable Care Act.

The problem arose as a result of a new House Rule adopted by the Republican majority shortly after they took control of the House following the 2010 elections. That Rule required that all legislation introduced in the House had to state the constitutional basis for the bill.

In its original form, H. R. 5 stated on page 26:

11 Congress finds that the health care and insurance
12 industries are industries affecting interstate com-
13 merce and the health care liability litigation systems
14 existing throughout the United States are activities
15 that affect interstate commerce by contributing to
16 the high costs of health care and premiums for
17 health care liability insurance purchased by health
18 care system providers.

In essence, this piece of Republican-sponsored legislation that sought to gut an element of Obamacare, was justified by the same argument used to justify the individual mandate!

The looming incongruity was caught by Republican lawmakers at the eleventh hour.

Writing in The Hill on March 22, Pete Kasperowicz reported:

House Republicans on Thursday voted to eliminate language in their own healthcare reform bill that said the U.S. healthcare industry affects interstate commerce, which Republicans feared could undermine their argument that the Democrats' 2010 healthcare law abused the Commerce Clause of the Constitution…
On Thursday morning, Rep. Rob Woodall (R-Ga.) offered an amendment to strip that language and all other language in the findings section of the bill. On Wednesday, Woodall explained that the language could confuse the issue of the GOP's position on how to interpret the Commerce Clause….
House Judiciary Committee ranking member John Conyers (D-Mich.) said removing the findings section would essentially eliminate the House's justification under the Constitution to pass the bill, and said the findings should not be struck.
"By striking statements of constitutional authority for the bill, the amendment recognizes that many members of the House question Congress's constitutional authority to pass H.R. 5," he said. "So for that reason … the findings are all important."
The House approved of Woodall's amendment to the bill by an 234-173 vote.

However, Republicans were still confronted with the need to comply with their self-imposed Rule to provide a constitutional validation for the bill.

Consequently, the final bill passed by the House and sent to the Senate contained the following provision on page 29:

13 The constitutional authority upon which this title
14 rests is the power of the Congress to provide for the gen-
15 eral welfare, to regulate commerce, and to make all laws
16 which shall be necessary and proper for carrying into exe-
17 cution Federal powers, as enumerated in section 8 of arti-
18 cle I of the Constitution of the United States.

One would be hard pressed to see that revision as being anything more than a distinction without a difference.

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