March 30, 2010
ATLANTA—Georgia State University College of Law Professors Lynn Hogue and Eric Segall published pro and con opinion pieces in the Atlanta Journal-Constitution on Tuesday, March 30, on the following question: Is the health care law likely to be held constitutional?
Hogue's answer? Yes. Congress has broad power to tax and spend, regulate commerce. Here's a portion of Hogue's piece:
"The ink is barely dry from the president's signature on the new health care law, and opponents are headed to court. The objections raised under the Constitution's commerce clause and the Tenth Amendment are not new. They were settled in the New Deal era, at least so far as constitutional lawyers are concerned. (Advocates in the politicized court of public opinion are another matter.)
"The Supreme Court has long said that Congress is free to regulate most activities that touch the economy, and that would include all aspects of the health care economy, from small personal purchasing decisions to what states do."
Segall's response? No. If Congress can mandate health insurance, there is no limit to its power. Here's a portion of what Segall wrote:
"At least fourteen states have filed suit against the federal government challenging the new health care law, and Georgia's Gov. Sonny Perdue announced last week that he'll pursue one as well after Attorney General Thurbert Baker declined to join the others. These suits challenge both the requirement that every person (with a few small exceptions) purchase health insurance by 2014 or pay a penalty, and numerous other parts of the law involving the Medicaid components of the bill.
"The Medicaid challenge, based on the Tenth Amendment, is unlikely to succeed because states can opt out of Medicaid. But, the challenge to the mandates for individual coverage raises more substantial issues. Congress does have the power to spend for the general welfare, to regulate commerce among the states and to tax."
Both pieces are published on the Atlanta Journal-Constitution website.