More discussion on the constitutionality of the Affordable Care Act

The middle of February a summary of David Cole’s argument for the constitutionality of the Affordable Care Act (ACA) was posted on this blog.  This is a follow up.

Recall that Professor Cole stated in the February 24, 2011 New York Review of Books, “The legal case should not be a close call“–that the ACA’s constitutionality would be upheld.  Two letters commenting on Cole’s argument were published in the April 7 issue, both letters by supporters of reform who had questions.  If you were interested in David Cole’s original essay, you likely will also find the two letters and his responses of interest. Here’s a recap followed by the links to the letters and response, and the original essay.

The first letter is from a Professor of Law, Francis McCarthy, who disagrees with the ACA’s challenger’s position that the “government..lacks the power to command action from individuals.”  He writes:

It would be a very odd body of constitutional law if the federal government could make a person act by serving in the military, perhaps at the cost of his life, but be unable to make him do something that affects interstate commerce by simply requiring him to purchase health insurance.

Professor Cole in part responds:

…the federal government’s power to compel citizens to risk their lives by serving in the army, as well as its powers to compel citizens to pay taxes and to serve on juries, does underscore that there is nothing inherently unconstitutional about imposing affirmative obligations on citizens.

The second letter by Cheryl Mendelson confuses the issues, which Prof. Cole succinctly corrects:

The issue is whether it is constitutional for Congress to have required individuals who can afford it to purchase health care insurance rather than exploit the system by being “free riders” and relying on the rest of us to bail them out. … [Ms. Mendelson and ACA challengers] both erroneously allow concerns about “liberty” to color their assessment of the actual legal question presented: Should the power to require citizens to purchase health insurance be enjoyed only by states, or should Congress also have that power?

In summary, David Cole writes:

Finally, it is worth emphasizing that the health care reform law does not merely impose a mandate on citizens. It gives every citizen something valuable and popular—the right not to be denied insurance or discriminated against because of one’s pre-existing medical condition. With that right, however, goes an obligation not to abuse the right by gaming the system and waiting to purchase insurance until one gets sick. The mandate, which applies only to those who can afford it, and allows individuals to pay higher taxes if they really object to dealing with insurance providers, is merely a reasonable condition on the important right the law grants us all against insurance companies.

The two letters and response are worth reading reading, and can be accessed here.

And if you haven’t already read it and would like to, the February essay by Professor Cole can be found here.

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