Professor Predicts Court Will Uphold Health Insurance Mandate

A San Francisco constitutional law professor who has been following the Affordable Care Act cases said today he's not surprised that spectators began waiting in line three days in advance for seats at this week's U.S. Supreme Court hearings in Washington, D.C.

David Faigman, a professor at the University of California's Hastings College of the Law, said one reason for the massive public interest is the importance of health care in people's lives and in the U.S. economy.

"Health care is 17 percent of the United States' gross domestic product, so it is a major national expense," he said.

"The future of the national economy depends on getting control over health care costs," said Faigman, who specializes in both constitutional law and the intersection of law and science.

Faigman said a second reason for public interest is the question of how the court will rule on the scope of the Constitution's Commerce Clause, which gives Congress the power to regulate interstate commerce.

Twenty-six states and a number of private groups claim the law's mandate that people must buy health insurance or pay a tax penalty exceeds Congress's authority to regulate interstate commerce.

That issue, which will be argued before the Supreme Court today, is "really the meat of the case," Faigman said.

"It's a big case and it will matter greatly what the court does," Faigman said.

The professor said the Supreme Court "has historically taken a very broad view of the Commerce Clause."

Between 1937, when the court upheld a New Deal law, and 1995, "the Supreme Court more of less got out of the business of reviewing whether Congress had the power to pass laws under the Commerce Clause" and had no major rulings invalidating laws on that basis, he said.

But in 1995 and 2000, court took a different tack and struck down two laws on the ground that they went beyond Congress's power to regulate interstate commerce, Faigman noted.

One of the overturned laws required gun-free zones around schools and the other allowed women who were victims of violent crimes such as rape to sue for civil damages.

In 2005, however, the court changed direction again in a case concerning Oakland medical marijuana patient Angel Raich.

In that decision, the court said Congress had the Commerce Clause power to criminalize marijuana use even if the marijuana is grown and used within a single state, is not sold in commerce and is legal for medical use under state law.

The high court majority said homegrown noncommercial marijuana still affects interstate commerce because it "has a substantial effect on supply and demand in the national market for that commodity."

Faigman noted that opponents of the health care law argue that failing to buy health insurance is not an activity and thus is not part of interstate commerce, while supporters contend that commerce is nevertheless affected.

Faigman said that while pundits have made predictions on all sides of the question, his own view is that Congress's Commerce Clause authority is so firmly established that the court will uphold the law.

"It's relatively clear case," predicted Faigman, who said he believes the court will affirm the mandate by 6-3 or 7-2 vote.

In an interesting twist, Raich, whose lawyers argued in 2005 that in-state marijuana should not be considered part of interstate commerce, signed onto a friend-of-the-court brief in February taking a similar position in opposing the insurance mandate.

The brief was submitted by Raich and four medical and free-enterprise groups.

It says Raich believes the mandate "will worsen, rather than improve, problems in our health care system" and that she is concerned that the government's interpretation of the Commerce Clause will lead to "the limitless federal power against which she warned in her own case before this court."

The filing is one of dozens of friend-of-the-court briefs submitted to the Supreme Court on both sides of the case.

The court's decision is expected by the end of June.

— Bay City News

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