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Health care law ruling ignores settled law

By Richard Bonnie, Special to CNN
  • Richard Bonnie says health care ruling is not about individual's right to decide to buy insurance
  • He says Massachusetts law already does that; question is whether federal government can
  • Judge reasoned that requiring insurance purchase not regulation of "commerce," he says
  • Bonnie: Court has extended commerce regulation before, recently in 2005 marijuana ruling

Editor's note: Richard Bonnie teaches and writes about criminal law, bioethics and public policies relating to health. He is Harrison Foundation Professor of Medicine and Law; Professor of Psychiatry and Neurobehavioral Sciences; Director, Institute of Law, Psychiatry and Public Policy; and Professor of Public Policy; and Frank Batten School of Leadership and Public Policy at the University of Virginia School of Law

(CNN) -- This week, U.S. District Court Judge Henry Hudson struck down a key provision of the national health care reform bill, known as the Affordable Care Act, that required every American to carry health insurance or pay a penalty tax.

A casual reading of Hudson's opinion in Commonwealth of Virginia v. Sibelius might leave the impression that the constitutional flaw in the federal law is that it violates an individual's right to make his or her own decision whether to carry health insurance. However, a state government has the authority to require its residents to purchase health insurance. Indeed, the federal law is modeled after a Massachusetts law that does exactly that.

The key issue in this case is whether the federal government has equivalent authority to require citizens of the United States to purchase health insurance -- or, to the contrary, whether only the states have that power. In short, this is a case about federalism, not about individual rights.

No one, including Hudson, doubts that Congress has the power to regulate interstate commerce in health insurance, to ban health insurance companies from refusing to cover people who have pre-existing conditions, to promote universal coverage and to control health care costs. Nor does any recognized expert in health policy question the economic rationale for a mandatory coverage provision.

Even Hudson acknowledges the plausibility of the government's argument that full market participation is an essential feature of a policy aiming to achieve near-universal coverage at reasonable price and to fairly distribute the cost of health care. From this standpoint, it seems clear that the mandated coverage provision is, in the Constitution's famous phrase, a "necessary and proper" instrument for enabling Congress to reform the health insurance market.

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To put it simply, Hudson has ruled that even though Congress has the authority to promote universal coverage and regulate health insurance, it lacks the authority to do so successfully. How does he reach this counterintuitive conclusion? The nub of his reasoning is that requiring a person to buy health insurance is not a regulation of "commerce."

Apparently, in Hudson's view, choosing to avoid a commercial transaction is not an economic activity at all. Therefore, it's not within reach of the power to regulate "commerce," even if it is "necessary and proper" to Congress' legitimate goals.

This line of reasoning is based on two erroneous legal conclusions: First, that regulating a decision whether to buy insurance is not a regulation of commerce. And second, that Congress' power "to make all laws which shall be necessary and proper for carrying into execution" the commerce power is limited to laws that themselves constitute the regulation of commerce.

Both of these assertions are incompatible with a number of other cases decided by the U.S. Supreme Court during the past 75 years. Rather than reviewing the entire body of law, I will mention only the most recent decision.

In 2005, the Supreme Court upheld congressional authority to prohibit cultivating or possessing a small amount of marijuana for one's own medical use even if the claimed medical benefits are uncontested, even if the marijuana grown or possessed is not intended for commerce and even if the conduct has been specifically authorized by state law.

Prohibiting possession of any amount of marijuana, even to alleviate pain, is within the scope of congressional power to regulate interstate commerce. This is because Congress could rationally determine that some portion of the marijuana grown or distributed for medical use is likely to be diverted into the interstate market for marijuana -- a market that Congress clearly has the authority to suppress.

In order to carry out the prohibition against interstate trade in marijuana, Congress can outlaw every single act of possession or cultivation, even of a small amount for personal, noncommercial use.

I am reasonably confident that the Supreme Court will uphold the mandated coverage provision of the Affordable Care Act when this issue reaches the court, as it surely will. Hudson's decision is out of line with the court's controlling precedents.

If Hudson's position prevails, it will only be because five justices on the Supreme Court decide to disavow settled law. I do not expect such a revolutionary change in the law.

The opinions expressed in this commentary are solely those of Richard Bonnie.