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Health care law: Legal challenge hinges on wheat, pot farmers, tax collection

Sun, Mar 25, 2012 (2 a.m.)

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Two years of debate over the health care law’s constitutionality comes down to six hours of oral arguments before the U.S. Supreme Court this week — and how the nine justices feel about wheat farmers, pot growers and tax collection.

Nevada is among 26 states challenging the law passed in 2010 and set to be fully implemented by 2014.

The health care debate in Congress may have turned on death panels and pre-existing conditions, but for the Supreme Court, deciding the law’s constitutionality comes down to whether health care is a form of interstate commerce. The Constitution gives Congress power “to regulate commerce ... among the several states,” and the court has upheld that ability in cases involving wheat and pot.

In 1942, the court decided, in Wickard v. Filburn, that the government could fine Roscoe Filburn, an Ohio farmer, for growing more wheat than his quota allowed under the interstate commerce clause. Filburn wasn’t trying to sell the extra wheat, but the government argued — and the court agreed — that they could fine him because in skirting the rules to grow extra bushels for himself, he was either not buying wheat from another farmer or guaranteeing he’d have more to sell.

Sixty-three years later, the court upheld that precedent, in Gonzales v. Raich, when it allowed the government to stop two California women from growing medicinal marijuana because that activity also affected interstate commerce.

The Supreme Court hasn’t supported every application of the commerce clause. A ban on firearms within 1,000 feet of a school, for example, was struck down because the court couldn’t find an interstate commerce connection.

But there is a pattern, proponents of health care reform say: When the matter has to do with economics — as, they argue, the health care mandate clearly does — the court always sides with the government.

Lawyers for Nevada and the other states bringing suit have a retort: Although the government can regulate people who are actually engaging in an economic activity — such as growing wheat or pot — it can’t compel people to start engaging, or in this case, buy health insurance they wouldn’t otherwise buy.

“There aren’t cases where there’s been the inactivity (not buying insurance) that’s been regulated, and that’s why it’s a good, clever, doctrinal argument,” said Ian Bartrum, who teaches constitutional law at UNLV’s Boyd School of Law. “But I’m not sure the precedent stands for activity versus inactivity.”

The difference cuts to the core of critics’ complaint that the health care mandate robs individuals of their freedom not to buy health care. As Georgetown Law professor Randy Barnett has put it, if the government can force you to buy health care, why can’t it force you to buy a Chevrolet or broccoli?

But the freedom argument doesn’t undercut the interstate commerce argument, UNLV constitutional law professor Thomas McAffee noted, because not everyone is going to have to eat broccoli, but everyone is going to have some sort of health care.

Those opposing the mandate “have the same motivation as the person growing their own wheat or marijuana, which is to not be involved in the commercial system (they’re already in),” McAffee said. “You’re trying to prevent someone from screwing up the overall system.”

There are two other substantive questions about the health care law before the court.

One is a question of severability: If the mandate is ruled unconstitutional, can the rest of the health care law stand without it? The other is about coercion: Can the federal government force states to expand Medicaid enrollment, as the health care law does?

(Medicaid is an opt-in program where the federal government shares with states the cost — usually more than 50 percent — of providing medical coverage for the very poor. Suing states say the government used their reliance on federal dollars as leverage to force expansion.)

But the court may not get to all that.

There’s an out for the court, should the justices choose. A little-known, under-discussed law called the Anti-Injunction Act says one can’t sue to interfere with the process of tax collection; one can only sue over how tax dollars are used after they are collected. Because the law doesn’t fully take effect until 2014, the argument goes, the government has to collect 2014 taxes before anyone has grounds to sue.

But jurists think — or perhaps just hope — the court wouldn’t dare kick this can down the road.

“I suspect, just given the gravity of the case, that they will reach the mandate question,” Bartrum said. “People are really wanting an answer on this mandate question.”

The Supreme Court will spend Monday, Tuesday and Wednesday hearing arguments. The court plans to release audio files of each day’s proceedings, a move almost as unprecedented as three days of arguments. Usually, cases get just one hour before the court.

The court must render a decision by the close of the session in June.

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Discussion: 9 comments so far…

  1. So would a decision mean, that if, say, Nevada DOES NOT have to provide the health care, then does that make a citizen ineligible to move to a state that DOES, in order to receive it?

    You can see the kind of national chaos this health care plan can create.

    It absolutely does affect commerce. If one state restricts it and another allows it, we will see people moving to a state that reflects their choice.

    Looking forward to hearing about this health care as it has legislation regarding using the RFID veri-chip for those who select it.

    Blessings and Peace,

  2. Quote: " But everyone is going to have some sort of health care"

    This is a key point in the mandate argument. Meaning, uninsured people affect the cost of health care in the USA, creating higher premiums for policy holders. So, this does indeed influence commerce. Currently many states mandate you must carry car insurance! If not, who would pay for damages from uninsure motorist? The States have the power to force you to buy car insurance. The government is now expanding the same powers the State have, in the case of car insurance, using Health Insurance. Health cost affects everyone in some way. When the uninsure access public health facilities, the tax payers paid the bill at some point. Commerce defintely affects health care cost.

    The Individual Mandate should stand until some better is presented.

  3. Enjoyed the article. I really think it's a sad situation that the sole problem of this is a testament against the failure of our government to do their job.

    Something is put in place that has never ever been done before in America; a national health care system put in place to try to fix things that were unfair and wrong. An attempt to provide affordable and adequate health care for all Americans.

    Now, because one side of the aisle hates it, and the other tries to improve it to make it better, but can't, because the other side blocks any and all attempts to improve it, nor are they interested in improving it, only destroying it, nothing gets done.

    Now, because our Government can't serve its people, it's shoved up to the U.S. Supreme Court, unintentionally making all of them Justices political activists.

    Make no mistake about this. It's ALL political now. It's not about doing what is right for the American people. It's just a fight we helplessly stand on the sidelines and watch. And frustrated. Because we are all pawns in this stupid game. Both sides fight and the American people suffer as a result.

    All because our government can't figure out how to take care of its people.

    What I really don't understand about this is, if the U.S. Supreme Court shoots down the Affordable Care Act, how do they explain to the American people that those things that you benefited from in order to make a health care system comprehensive and better...all of a sudden....the portions of it that are in effect right now that people like are being taken away from you? I don't care what Constitutional Law you explain in explicit detail, it's not going to make sense to the average American. All they are going to see is a totally dysfunctional government...on all three levels.

    Whatever happens as a result of the U.S. Supreme Court's actions, don't matter which way it goes, the only victims in this whole thing is the entire American population.

    That is a fact all of us can predict already.

    And it's really not healthy for our fragile government right now.

  4. "of the 1%, by the 1% and for the 1%."

    This is what the Republicans stand for.

    I do not hear the Tea Party getting upset because of subsidies to multibillion dollars in profit corporations. That leads me to believe they are part of the problem. Millionaires want to write off their Corporate Jet expenses while the Republicans are trying to take away mortgage deductions for the average homeowner. Republicans seem to be awful worried about losing their tax breaks and subsidies that has been their welfare checks from the U S Government for decades. I think the welfare to big business should be cleaned up as well as for the less fortunate.

    My employer requires me to take a drug test to get hired and at various times of the year random checks, but we cannot require the unemployed to take a drug test to receive unemployment benefits. If they do not pass they should not be able to receive the benefits. At that point they are not able to get a job because they could not pass the drug screening for employment. There is something wrong there.

    Health care reform is what is needed and everyone should be trying to solve the issues rather than trying to eliminate it.

  5. When you offer guaranteed coverage regardless of pre-existing conditions, then you must have an individual mandate to purchase health insurance. Otherwise, nobody would buy health insurance, just wait until you need it (pre-existing condition) then buy health insurance (this was actually the Republican argument before Obama became president). It would be like someone being diagnosed with a terminal illness and being able to go buy a million dollar life insurance policy.

  6. I loath the idea that the government, yet again, would be able to extract more of my hard earned money and use it on another ill conceived and ill managed program in the guise of "being better for us all."

    How many governmental personal-programs are truly useful for the vast majority of the taxpayers? I can't think of any. All I can think of is how long the lines are for medical care in Canada.

  7. @Test-Guy, Why don't you try reading the Affordable Health Care Act, just the high lights even, and then 10 years from now when you find yourself with Cancer you WILL be glad your arse was Mandated into it!!!

  8. The solution as implemented by this law is worse than the disease. It is probably worst possible compromise between fully private and fully socialized medicine.

    The debate needs to center on whether or not universal healthcare is a proper role for government, THEN decide how best to achieve that.