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Politics : View from the Center and Left -- Ignore unavailable to you. Want to Upgrade?

To: Dale Baker who wrote (149493)	11/10/2010 5:55:25 PM
From: Dale Baker	Respond to of 541789

Constitutional law prof: Mitch McConnell's attack on health reform is "absurd" By Greg Sargent As you may have heard, Mitch McConnell has thrown in his lot with states suing to overturn Obamacare, filing a friend-of-the-court brief arguing that the individual mandate is unconstitutional. I just checked in with a constitutional law professor -- this seemed like a good hook to ask an expert to take a look at this claim, since it's so widespread -- and he dismissed McConnell's argument as "absurd." Louis Seidman, a professor at Georgetown University, spelled out why the primary arguments advanced by McConnell's brief don't hold any legal water. It argues, as many others have, that the commerce clause in the Constitution does not authorize the creation of an individual insurance mandate. The commerce clause "does not authorize Congress to mandate the purchase of a particular product, only to regulate commercial activity in which people are engaged," the brief says. But Seidman counters that the mandate is Constitutional, because it falls under the Constitution's authorization of Congressional regulation of commercial activity that has a substantial impact on interstate commerce -- and that this has been upheld by the Supreme Court. The 1942 decision Wickard v. Filburn allowed Congress to prohibit farmers from growing excess wheat for their own use, on the grounds that so doing would impact the interstate wheat trade. Under the decision, Seidman points out, Congress was allowed to compel people to stop producing their own wheat and buy it on the interstate market. Seidman argues that under this precedent, the individual mandate is constitutional, because health reform does the same. "The claim that opponents of the mandate make is that Congress has never forced people to engage in interstate commerce," he says. "But Wickard did that." Seidman, who allows that he generally supports Dems and Obamacare, also argues that the McConnell case is off base in another way. He says that Congress in a sense already compels the purchase of insurance. Seidman points to Medicare Advantage, and notes that it's supported by taxation which, of course, is compelled by the Federal government. Under Medicare Advantage, this money is used by the Federal government to purchase health insurance. "We require people to give money to the Federal government, which then gives it to insurance companies," he says. Seidman adds that this is not meaningfully different from Obamacare's mandate that individuals buy insurance: "It is absurd to argue that the Constitution requires that the Federal government be a conduit for money taken from individuals and given to insurance companies," he says. In other words, he concludes, it's absurd to argue that removing the Federal government from this equation somehow suddenly makes the arrangement unconstitutional. UPDATE, 1:48 p.m.: Post edited slightly from original. 2010 11 10 13 19 By Greg Sargent \| November 10, 2010; 1:19 PM ET