Consumer Law

Some Tidbits on the Constitutionality of the Health Care Legislation's "Tax" or "Penalty" or "Fee" for Not Participating

By Brian Wolfman

As many of you know, the health care legislation's so-called mandate on participation and its tax (or penalty or fee) for not participating has raised a constitutional ruckus. Most (but not all) of that debate has centered on whether the "mandate" is within Congress's Commerce Power. I thought I'd share two recent pieces on the topic: an op-ed by Harvard law professor. (and former Reagan Administration SG) Charles Fried, who says that the provision is constitutional and that it's not a close call, and a response from Professor Ilya Somin.

It's critical to know that Professor Fried (pictured to the right) is so sure of himself that he told CNN reporter Greta Van Susteren that he'd eat a kangaroo skin hat (pictured to the left) if the Supreme Court disagrees with him:

FRIED: So, the question is, is it constitutional? And it seems to me, though there are a lot of things to object in this, and I would be the first to say so, the constitution is not one of them. If you don't like it, repeal it or amend it. But don't ask the courts to do the job for you, because they won't. [...]

VAN SUSTEREN: The issue that will confront the federal judge, and the Supreme Court if it goes on, is whether or not the Commerce Clause gives the federal government the power to do this....And does the constitution in your opinion, sir, enable them?

FRIED: It certainly does. The statute which I have in front of me, I bothered to read it, says that the health insurance industry is an $854 billion dollar industry. That sounds like commerce. The Supreme Court just five years ago with Justice Scalia in the majority said that it is all right under the Commerce Clause to make it illegal for California for residents in California to grow pot for their own use, because that has effect on interstate commerce. Well, if that has effect on interstate commerce, what happens in an $854 billion national industry certainly does.

VAN SUSTEREN: Is there any possibility, in your mind, or any thought that you could be wrong?

FRIED: Well, I suppose I could. But I'll tell you what, I would be happy to come on this program and eat a hat which I bought in Australia last month made of kangaroo skin.

This almost makes me want the Supremes to strike down the law!

Full post as published by CL&P Blog on May 25, 2010 (boomark / email).