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Hanna: Health Care Act

02/22/11 7:55AM By Cheryl Hanna
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(HOST) There have been many developments in federal lawsuits challenging the Affordable Health Care Act. Commentator and Vermont Law School Professor Cheryl Hanna looks at what's happening in the courts, and what this litigation means for Vermont.

(HANNA) Four separate federal courts have now considered the question of whether mandating that all Americans either buy health insurance or pay a fine is constitutional. Two democratic-appointed judges upheld the law, and two republican-appointed judges struck it down.

Most recently, Virginia has asked the United States Supreme Court to consolidate and expedite these cases, given both their national significance and how deeply divided the rulings have been.

As evidence of these divisions, Vermont Attorney General Bill Sorrell just announced that he'll be joining with seven other attorneys general in filing a friend of the court brief urging the 6th Circuit to uphold the law.  Attorneys general in at least 26 other states are opposing the law.  This support also breaks down along party lines.

Ironically, had Congress passed a tax-funded single-payer system, it would have been unquestionably constitutional. Congress is free to tax and spend on behalf of the general welfare, as with Social Security. Pure economic socialism, as I often remind my students, is constitutionally acceptable. But because Congress chose to require individuals to purchase health insurance from the private market, it opened the door to a challenge that such a mandate exceeds Congress's power.

In the most recent case, the judge struck down not only the mandate but the entire law.

The law itself doesn't have a clause that says if one part's declared unconstitutional Congress intended the rest of the law to stand.  Apparently, that omission was the result of some oversight by a Senate staffer, but the Court found that because the individual mandate was central to the legislation, the entire law had to fall.

The Supreme Court could hear arguments as early as this fall if it grants an expedited review. If no unexpected vacancies occur on the bench, it's quite likely that the entire bill will be declared unconstitutional by one vote - again along party lines.

So, if that were to happen, what would that mean for Vermont?

First, it's important to keep in mind that if the health care law is ultimately ruled unconstitutional, it's because Congress can't mandate individuals to buy private health insurance.  But there's nothing in the Constitution which would prohibit the states from doing so.

Indeed, what's driving much of the litigation around the health care law is the idea that the states, not the federal government, should regulate health care.  What's important legally is that, to date, no court has said that the law violates the rights of individuals - meaning that states can implement just about any kind of health care system they want.

So, if Vermont does ultimately pass a single-payer health care system, or decides to model itself after the federal law and require people to purchase health care, the Supreme Court can't stand in its way. In the end, what will dictate universal health coverage in Vermont is not the Constitution but our own political will - and, of course, the resources to pay for it.
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