Cato Scholar: Obamacare Constitutional In Some Ways, But Not Others

A Cato Institute scholar and Georgetown law professor seems to think that the states won’t be able to exempt themselves from the federal health care bill. However, he does think individuals while have standing to sue the federal government because it forces them to buy health insurance products. Below is a synopsis from The Heritage Insider. Click here to read his original Washington Post column.

Some Constitutional Arguments Against Obamacare Are Better Than Others

Law professor Randy Barnett, writing in the Washington Post, provides an overview of the possible legal challenges to Obamacare. Barnett thinks attempts by various states to exempt their residents from the mandate to purchase health insurance have little hope of succeeding, because

Under the 10th Amendment, if Congress enacts a law pursuant to one of the “powers . . . delegated to the United States by the Constitution,” then that law is supreme, and nothing a state can do changes this. Any state power to “nullify” unconstitutional federal laws has long been rejected.

A better argument would seem to be that the Constitution simply doesn’t give Congress the power to require anybody to purchase a particular good or service. Yes, Congress can regulate interstate commerce, but are people engaged in interstate commerce when they refrain from buying health insurance? Says Barnett:

Regulating the auto industry or paying “cash for clunkers” is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.

However, as Ryan Lirette points out at the Enterprise Blog, a party challenging the constitutionality of a federal law has to show that the law has or will soon cause some harm. It is unlikely, therefore, that anybody will be able to establish standing to challenge an individual mandate until 2014, when the mandate takes effect. In the meantime, if the states really want to put pressure on Congress, they can exercise their Article V power to demand a constitutional amendment to bar federal regulation of health insurance or an individual mandate. If two-thirds of the states called for such an amendment, Congress would be required to hold a constitutional convention for that purpose.

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