Here are some of the GOP's bright lights arguing on the floor yesterday that the Affordable Care Act is unconstitutional. Here's Reps. Steve King, Dan Lungren, and Ben Quayle.
King: The other component that is Judiciary Committee component of this Obamacare legislation that is about to have a vote on repeal here that we're debating is the components that are unconstitutional. The individual mandate as the most egregious component of Obamacare that compels Americans to buy a policy produced or approved by the federal government.
Lungren: Certainly the Commerce Clause lacks the elasticity that would accommodate a requirement that every American buy health insurance which conforms to the dictates of the federal government as the federal government would change it on a yearly basis. Such an interpretation would render the notion articulated by James Madison in Federalist 45 that is one of limited government a nullity. Now I know we have smart people here. I know we have those in the administration who believe that this is totally constitutional, but frankly, uh, Mr. Speaker, my bet goes with James Madison.
Quayle: They passed a bill that expands the scope of government well beyond the parameters set forth by the Constitution. The genius of our Constitution is that this document didn't set forth what the government can do--must do for us, but rather what the government can't do to us. Requiring every individual to enter into a commercial contract certainly fails with--falls within what the government can't do to us.
You could believe them, or you could believe more than 100 law professors, who weighed in on the constitutionality of the Affordable Care Act, including names like Walter Dellinger and Larry Tribe, with a joint statement [pdf]:
We, the undersigned, write to explain why the “minimum coverage provision” of the Affordable Care Act (ACA), which requires most Americans who can afford it to have health insurance or pay a tax, rests on sound, long-established constitutional footing. The current challenges to the constitutionality of this legislation seek to jettison nearly two centuries of settled constitutional law.
Congress’s power to regulate the national healthcare market is unambiguous. Article I of the U.S. Constitution authorizes Congress to regulate interstate commerce. The national market in healthcare insurance and services, which Congress found amounts to over $2 trillion annually and consumes more than 17% of the annual gross domestic product, is unquestionably an important component of interstate commerce. One of the Framers’ primary goals was to give Congress the power to regulate matters of national economic significance because states individually could not effectively manage them on their own. The problems facing the modern healthcare system today are precisely the sort of problems beyond the reach of individual states that led the Framers to give Congress authority to regulate interstate commerce.
Opponents of healthcare reform argue that a person who does not buy health insurance is not engaging in any commercial “activity” and thus is beyond Congress’s power to regulate. But this argument misapprehends the unique state of the national healthcare market. Every individual participates in the healthcare market at some point in his or her life, and individuals who self-insure rather than purchase insurance pursue a course of conduct that inevitably imposes significant costs on healthcare providers and taxpayers.
Given that the minimum coverage provision bears a close and substantial relationship to the regulation of the interstate healthcare market, Congress can require minimum coverage pursuant to the Constitution’s Necessary and Proper Clause. In a landmark decision studied by every law student, the Supreme Court in 1819 explained that the Necessary and Proper clause confirmed Congress’s broad authority to enact laws beyond the strict confines of its other enumerated powers: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end” are lawful, the Court wrote. Since then, the Supreme Court has repeatedly held that Congress, in regulating the national marketplace, can reach matters that when viewed in isolation may not seem to affect interstate commerce.
In 2005, Justice Antonin Scalia explained that the necessary and proper clause gives Congress broad authority to ensure that its economic regulations work. In Justice Scalia’s words, “where Congress has authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.” Just last term, a majority of the Supreme Court, in an opinion joined by Chief Justice John Roberts, wrote that in “determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.”
Frankly, my bet goes with Scalia.