Health Care Law Attracts Constitutional Arguments

A federal judge found a portion of the health care law unconstitutional this week. Two other federal judges have upheld that same provision. It may take some time for the Supreme Court to sort things out. In the meantime, Steve Inskeep talks with two former solicitors general, Walter Dellinger and Paul Clement, about the provision requiring most Americans to buy health insurance.

STEVE INSKEEP, Host:

It's MORNING EDITION from NPR News. Good morning, I'm Steve Inskeep.

DON GONYEA, Host:

A federal judge found a portion of the law unconstitutional this week. Two other federal judges have upheld that same provision.

INSKEEP: Paul Clement served under President George W. Bush. He's on the line from Virginia. Welcome back to the program.

PAUL CLEMENT: Thanks. It's good to be back.

INSKEEP: And Walter Dellinger served President Bill Clinton in the same capacity. Welcome to you, sir.

WALTER DELLINGER: Thank you.

INSKEEP: Walter Dellinger, why don't you start? What does the Commerce Clause say and how does it apply to this law?

DELLINGER: But Congress also knew, to make that workable, you had to provide some economic incentive for people to buy insurance. If you couldn't be denied coverage, you could wait and by your insurance on the way to the hospital...

INSKEEP: Sure. Sure.

DELLINGER: ...on your cell phone.

INSKEEP: Right.

DELLINGER: So therefore, Congress thought that was necessary, to make this workable, and that's why Congress enacted it.

INSKEEP: Paul Clement, what is the argument that it would not give Congress the power to make this particular regulation in health care?

CLEMENT: But the Supreme Court never wants to have the government say that the Commerce Clause gives the federal government plenary power to regulate anything it wants.

INSKEEP: Anything having to do with money, for example. Just anything at all, having to do with your pocketbook - that would be too much.

CLEMENT: So the government, if it has a problem here - and the reason I think the reason failed to convince Judge Hudson, is that I think they have trouble articulating a limiting principle. They certainly have tried, and tried to describe the health insurance market as different from other markets. But I think that's the challenge for the government.

INSKEEP: Okay, Walter Dellinger, what's the limiting principle? If this law is constitutional, what would prevent it from being just absolutely going too far - the principle?

DELLINGER: And, Steve, here's how it's different from any other product. If I don't buy a flat screen television, and it turns out that my teammates makes the Super Bowl, I can't run into some store and say you have to give me a flat screen television.

(SOUNDBITE OF LAUGHTER)

DELLINGER: But in our country, under the Emergency Medical Treatment Act and our culture, we do provide people with health care. We just make somebody else pay for it. And that's a fundamental difference between this and any other requirement to purchase a product.

INSKEEP: I've just got a few seconds left and I'm going to go, very briefly, to each of you. Paul Clement, do you see any way this case would stop short of the United States Supreme Court?

CLEMENT: I think the only one that it stops short of the Supreme Court is if every court of appeals that hears this case - and there's at least three and that will hear it in different parts of the country - if every court of appeals that heard this upheld the law, I don't know that it's a foregone conclusion that the Supreme Court would hear the case. But otherwise, it's going to get there.

INSKEEP: Walter Dellinger, a couple of seconds here.

DELLINGER: I agree.

(SOUNDBITE OF LAUGHTER)

INSKEEP: Thanks very much to you both. Walter Dellinger, former solicitor general under President Clinton, thanks to you. And Paul Clement, former solicitor general under President Bush, thanks to you as well.

CLEMENT: You bet.

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