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 GrassleyChuck GrassleyFive things to know about the Clinton Foundation and its donors Clinton calls for EpiPen maker to lower price Competition is the cure for EpiPen’s price hike MORE (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 LeahyPatrick LeahySanders, liberals press Obama to expand closure of private prisons Police union: Clinton snubbed us Congress saving the past for the future MORE (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 DurbinDick DurbinDem wants hearing on EpiPen price hikes Legislators privacy fight coincides with FCC complaint Syria activists cheer Kaine pick MORE (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.