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CCH® BENEFITS — 08/09/10

Federal government does not have right to implement universal health care, says attorney Jonathan Emord

Congress is relying on circular reasoning in its attempt to require all Americans to obtain health insurance, and the constitutionality of the Patient Protection and Affordable Care Act (PPACA) is questionable, according based in to attorney Jonathan W. Emord, principal of Emord & Associates, based in Clifton, VA. The following is an excerpt from a two-part interview conducted by CCH with Mr. Emord. The interview will appear in the two August editions of CCH's Employee Benefits Management Directions newsletter.

In response to CCH's question regarding whether or not various states that have filed suit against the federal government in an attempt to have the PPACA declared unconstitutional have a legitimate claim, Mr. Emord responded, “The States have a case. The Commerce Clause gives the Federal Government power to 'regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.' The Founding Fathers limited the powers of the Federal Government to preserve a system of dual federalism, creating a substantive separation in power and jurisdiction between state and federal governments. The concept of dual federalism was an essential safeguard against an overly powerful centralized federal government. Since the 1930s, Congress has attempted to expand the definition of 'commerce.' The more expansive the definition, the greater the federal government’s reach.”

“The Supreme Court has held that the Commerce Clause permits three broad categories of congressional regulation: (1) the channels of interstate commerce (e.g., roadways, railways); (2) the instrumentalities of interstate commerce (e.g., trucks passing on those roadways); and (3) activities 'having a substantial relation to interstate commerce' (e.g., activities that substantially affect interstate commerce). See United States v. Lopez, 514 U.S. 549, 558-59 (1995).”

“Central to all of the Supreme Court’s Commerce Clause decisions is a determination of whether there exists an act by the prospective regulatee that is tied to Commerce. In the PPACA, the Federal Government attempts for the very first time to regulate ‘inactivity.’ Congress believes the PPACA requirement fits within Commerce Clause jurisprudence because it equates a citizens lack of health insurance with an affirmative decision not to purchase health insurance. Thus, according to Congress, a decision not to purchase insurance is an ‘activity’ regulable under the Commerce Clause.”

“Congress’s interpretation, however, is a fiction and is novel. Under Congress’s reasoning, the Commerce Clause would be limitless because the Federal Government could reach any ‘inactivity’ by simply defining the absence of conduct as having some, albeit attenuated, effect on commerce. For example, Congress could compel every citizen to purchase an electric automobile because the decision not to purchase such a car would affect public policy in favor of non-combustible fueled modes of transportation. Such regulation would never have seemed possible before PPACA.”

“The decision not to buy health insurance is one that divorces the individual from the stream of commerce involving interstate sale of health insurance. To presume otherwise causes the Commerce Clause to be limitless. Here Congress depends on circular reasoning: Congress wants all Americans insured, thus if any are not insured they adversely affect achievement of the congressional goal. That, however, is inconsistent with historic Commerce Clause analysis. Congress may want all Americans insured but it may only compel individuals to be insured if they have a substantial effect on the market for interstate health insurance. Those who do not have health insurance presently and do not want to obtain it have no effect on the existing market for health insurance and will have no effect in future.”

“The constitutionality of the law is thus questionable. And the result depends on how the current Supreme Court interprets the substantial effects test. Indeed, in a July 2009 report by the Congressional Research Service, CRS found that ‘[w]hether such a requirement would be constitutional under the Commerce Clause is perhaps the most challenging question posed by such a proposal, and it is a novel issue whether Congress may use this clause to require an individual to purchase a good or service.’ The question is a novel issue of law for the courts, and the Federal Government’s position appears to conflict with established Commerce Clause precedent. Therefore, on the law the States have a strong case.”

Source: Interview with Jonathan W. Emord, Emord & Associates,

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