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Health Care: The Prognosis June 1, 2010

Posted by daviddavenport in Newspaper Columns/Essays.
Hoover Digest, Summer 2010, No. 3, Health Care Reform. 
Hoover Scholars examine the patient. 
by John F. Cogan; Daniel P. Kessler; Scott W. Atlas; Richard A. Epstein; Victor Davis Hanson; Gary S. Becker; Russell Roberts; Tunku Varadarajan; David Davenport; Robert Zelnick; and Charles E. Phelps
Essay contributed by David Davenport 

David Davenport

President Obama overcame popular opposition to national health care  reform, using “reconciliation” sleight of hand to get it through the U.S. Senate, but he still faces one more obstacle: a constitutional challenge in federal court. Within weeks of the law’s passage, twenty states, one business lobbying group, and two individuals had joined to argue that it was unconstitutional.

The core issue will be the unprecedented requirement that individuals purchase health insurance or pay a fine. The government will argue that this mandate is allowed because it significantly affects interstate commerce. But if my healthy twenty-year-old child decides not to buy health insurance, there’s no commerce involved. The government may also claim that this requirement falls under its power to tax, but no matter how you label it, the payment by the insurance holdouts is really a penalty.

In addition, the states have a strong argument under the Tenth Amendment, which provides that all powers not given to the federal government be reserved to the states or the people. Nothing in the Constitution gives the federal government power over health care, which has traditionally been a state matter. Nor would Congress find constitutional support to create unfunded mandates or require states to rewrite their Medicare laws, as this law will do.

Ultimately, if the interstate-commerce clause allows the federal government to require people to enter into private health care contracts, what power does it not have? What is left for states? These are serious, if inconvenient, questions that the courts will need to answer.

David Davenport is counselor to the director and a research fellow at the Hoover Institution. He wrote this essay for the Hoover Digest.

To read the entire article:  http://www.hoover.org/publications/hoover-digest/article/34831

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