Constituional Concerns regarding the Affordable Health Care Act

By Chuck Hobbs, Esquire – Over the past year and half, perhaps the most common argument against the Affordable Care Act is the idea that its implementation, specifically its mandate that individuals purchase coverage or face penalties, is contrary to the 10th Amendment of the United States Constitution. As a result, the concept of “nullification”, which holds that states have the right to nullify Federal laws deemed contrary to the will of the people within a given state, has reemerged for the first time since Southern leaders invoked the same to express their displeasure with the Brown vs. Board of Education decision in 1954 which required states to desegregate “with all deliberate speed.”

In similar form, Republican/Tea Party candidates and attorneys general from a number of states have argued that the Act, seen by many to be the seminal political event of the Obama presidency, is an unfettered attack on the sovereignty of the individual states. The opposing view, that Federal laws supersede conflicting state laws, forms the basis of the Obama administration’s defense through their lawyers at the Justice Department.

While two federal judges have disagreed with the administration’s reasoning, two others, most recently Pensacola Federal Judge Roger Vinson, have found the law or certain provisions within it unconstitutional. Cognizant that the United States Supreme Court will eventually decide the law’s fate, the question remains: what measures can be implemented to either tweak the law as it currently exists, or pass legislation that can be supported by both parties?

This, of course, will be no easy task, with passion on this topic—-more often than not—- obscuring reason.

There is little doubt that most Americans, regardless of political ideology, have a fundamental understanding that there are problems with our current health care system. Anyone who has been ill or watched as a loved one suffered from illness can attest that our system, oft times, is a bureaucratic nightmare that leaves patients and increasingly doctors frustrated as to how to best provide effective service.

And it is rather perspicuous to note that health care, while not an enumerated right within the Constitution, is still a major governmental concern in that the health of the citizenry impacts so many other areas of our Republic, including commerce.

With those basic understandings met, the crux of the current political dissonance is how top best deliver access to affordable health care for our citizens. This issue is fueled by basic lines in the sand that have been drawn since our founding, including whether it is the role of the federal government to derive powers that are not granted to it by the Constitution. The 10th Amendment of the Constitution specifically holds that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the State’s respectively, or to the people.”

Judge Vinson rejected this line of argument by the states, a fact that is curiously glossed over by the Act’s political opponents. Instead, Judge Vinson found the law unconstitutional on the grounds that it exceeds the regulatory powers of Congress, averring that “If Congress can penalize a passive individual for failing to engage in Commerce, then the enumeration of powers in the Constitution would have been in vain.”

With the current conservative complexion of the US Supreme Court, it is entirely possible that the Court will uphold Vinson’s ruling. While no injunction is in place, the Act is still in limbo. The question is whether our Congressional leaders can draft legislation that addresses the Constitutional concerns raised by the opposing states? Or, with a presidential election at stake, will the posturing that is all too familiar during campaign season leave the issue unaddressed for the foreseeable future?

In his recent State of the Union (SOTU), President Obama issued a challenge to the Republican majority in the House of Representatives, urging its leaders to provide reasonable alternatives to their concerns with the Act as it is currently comprised. While much has been written about the grassroots nature of last year’s election that saw the House swing back into Republican hands, it remains clear that special interests, namely the major pharmaceutical and insurance companies that seem “recession proof” as they continue to rake in exorbitant profits, will continue to play a significant role in whether real health care reform will occur.

In that regard, what remains troublesome to me is the lack of cost controls and price regulation with respect to these same industries. On the state level, insurance rates rise each year because of the deep influence that the insurance lobby has on elected state officials. These costs invariably are transferred to consumers and businesses. While President Obama suggested in his SOTU that it is time to end certain special privileges for Big Oil, perhaps it is time for our leaders to enact certain tax breaks and other economic incentives to pharmaceutical and insurance companies—breaks that would be given in exchange for greater self regulation of costs.

While such measures may be dismissed by skeptics who curiously derive little to no personal benefit from the huge profits these industries earn, such would certainly provide an alternative to watching greater access to affordable health care die a slow death by litigation.