Senate panel probes constitutionality of reform law

Charles Fried, solicitor general under President Reagan, defended the constitutionality of the reform law. He said that health insurance qualifies as commerce, so Congress has the power to regulate it.

“If healthcare is commerce, then does Congress have the right to regulate healthcare insurance? Of course it does,” Fried said.

Michael Carvin, a lawyer in the Reagan administration, agreed that insurance should be considered commerce, but he said Congress cannot regulate an individual’s decision to not purchase insurance.

“The issue is whether inactivity is commerce,” Carvin said. “The decision of a citizen not to buy health insurance doesn’t affect commerce.”

The Obama administration has argued the opposite, however, saying that all individuals participate in the healthcare system at some point in their lives. Further, a person’s decision not to purchase health coverage affects the insurance market because the costs of uncompensated care are shifted on to individuals who have insurance.

Ranking member Chuck Grassley (R-Iowa) stung Democrats for not holding an earlier hearing on the law’s constitutionality.

“The sensible process would have been to hold hearing on the law’s constitutionality before the bill passed, not after,” Grassley said.

However, Sen. Patrick Leahy (D-Vt.) said lawmakers considered the constitutionality of the reform law while it was still being crafted. 

“The Senate rejected a Constitutional point of order,” he said. “We voted that the act was constitutional.”

The hearing largely rehashed legal arguments for and against the reform law that have surfaced since lawsuits were mounted against it — some just minutes after the law was enacted last March. Democrats used the opportunity to question the motives behind legal challenges to the law.

Sen. Dick Durbin (D-Ill.) charged challenges to the reform law — and the two rulings that struck down the individual mandate — as cases of judicial activism.

“They are pushing the Supreme Court to strike down this law because they couldn’t defeat it in Congress,” Durbin said.

More in Healthcare

Senate health panel takes up 40-hour week

Read more »