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Image: Senate Judiciary Committee hearing on health care act
Michael Reynolds  /  EPA
From left to right, Professor of Law at Harvard Law School Charles Fried, partner at Jones Day Michael Carvin, professor emeritus of law at the Duke University School of Law Walter Dellinger, and professor of legal theory at the Georgetown University Law Center Randy Barnett speak with one another before appearing at the U.S. Senate Judiciary Committee hearing on the "Constitutionality of the Affordable Care Act," on Capitol Hill in Washington on Wednesday.
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updated 2/4/2011 10:29:18 PM ET 2011-02-05T03:29:18

The Supreme Court likely won't take up a case challenging the constitutionality of the health care bill until next year, but legal experts are already beginning to ponder the key questions that will be addressed by the legions of lawyers and clerks as well as the justices who will ultimately decide whether or not the law stands.

The most central of these inquiries is whether the “individual mandate” — the federal requirement that most Americans buy health insurance or pay a penalty — is constitutional.

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At a hearing Wednesday, a panel of law professors and attorneys discussed those constitutional issues before the Senate Judiciary Committee. The six who testified have attended and taught at some of the nation’s preeminent law schools and have argued a total of more than 50 cases before the Supreme Court.

Read: Ruling by Fla. judge that health care law is unconstitutional  (.pdf)
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Here’s what some lawyers, judges and lawmakers on both sides of the issue have said this week about some of the basic questions surrounding the constitutionality of the law:

The government can compel me to take actions like paying taxes or serving in the military. So does it also have the power to force me to have insurance?

The case for “yes”:Article I of the Constitution lays out the “enumerated powers,” a grant of specific authorities to Congress.

One of the “enumerated powers” is Congress’ ability “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

Harvard law professor Charles Fried, who served as Solicitor General under President Ronald Reagan, says the “commerce clause” clearly applies to the health care insurance market.

“Health care insurance surely is commerce, insuring as it does something like 18 percent of the gross national product,” he said. “Now if that's so, if health care insurance is commerce, then does Congress have the right to regulate health care insurance? Of course it does.”

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Duke University law professor Walter Dellinger, a former acting solicitor general who believes the health care law is constitutional,adds that the unpredictability of when or if a citizen will need health care makes the insurance market different than markets for other products.

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An uninsured person who is unexpectedly rushed to the emergency room could benefit from millions of dollars worth of medical care, and those costs are passed along to others in the system. He argues that the transferability of those costs justify the government's authority to regulate the insurance market.

“If my team makes the Super Bowl and I haven't thought that they would and haven't provided for a flat-screen television, I can't show up [at a store] and have someone provide it to me,” Dellinger said. “But with health care, no one can be assured they won't need it. And when they do it, it is often the case that the cost is transferred to other people.”

The case for “no” : Among the enumerated powers are Congress’ abilities to collect “taxes, duties, imports, and excises” and to raise armies. Those constitutional powers are what make federal taxes and the draft constitutional.

Civil responsibilities like those — and like filling out a census form or doing jury duty — are “inherent in being a citizen of the United States, each is necessary for the operation of the government itself, and each has traditionally been recognized,” argues Georgetown Law Center Prof. Randy Barnett.

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But buying health insurance, he says, is none of those things. And forcing citizens to buy a product isn’t covered in the “enumerated powers” list at all.

“The [individual] mandate's defenders claim that because Congress has the power to draft you into the military, it has the power to make you do anything less than that, including mandating that you send your money to a private company and do business with it for the rest of your life,” he said. “This simply does not follow. The greater power does not include the lesser.”

Michael Carvin, a partner at Jones Day, also argues that — while the “commerce clause” of the Constitution allows the federal government to regulate commercial activity, it doesn’t say anything about inactivity — the act of NOT buying insurance.

“Sitting at home and staying out of the commercial marketplace is not commerce,” Carvin says. “It only becomes commerce if you leave your house and decide to buy or sell goods and services.”

In other words, a young person who is healthy and doesn’t have health insurance isn’t affecting the national health care insurance market at all, Carvin says. So the federal government has no right to force that person to buy insurance.

OK, but it’s legal to make me buy car insurance. So is it legal to make me buy health insurance?

The case for “yes” : If you’re going to drive a car, there’s no way to predict for sure that you’ll never be in an accident. The state makes you buy car insurance to protect other people whose property or person you might hurt in a wreck.

Similarly, there’s no way to predict that a living human being won’t get sick or injured.

Dellinger says:  “If you're going to drive, the states say you have to have liability insurance. And [the health care law] says if you're going to use health care, you need to have health care insurance. And since this is a product which everyone will use, or at least no one can be assured that they won't wind up at the hospital, in that sense it seems quite similar.”

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The case for “no”:  First, states – not the federal government — have the power to regulate vehicle insurance. But you’re only required to buy car insurance if you buy and use a car. As Barnett says,“It's absolutely garden-variety regulation … to tell a citizen that if you're going to do something, here's how you have to do it. That's just something that the government does.”

But the difference between car and health insurance, Barnett says, is that no one forces you to have car insurance unless you drive. Making a car owner purchase car insurance is “a fundamentally different proposition” than telling a citizen to buy health insurance simply because that citizen is alive and could one day become sick, he says.

Again, it’s the difference between activity (starting a small business that’s subject to federal regulation or buying a car that’s subject to liability insurance requirements) and inactivity.

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If the federal government can force me to buy health insurance, does that mean it can also make me eat healthy foods or go to the gym?

The case for “no” : Dellinger and Fried argue that the “liberty clause” (the part of the Fourteenth Amendment that prohibits government from depriving “any person of life, liberty, or property” without due process) would prohibit the government from forcing Americans to engage in a particular behavior like attending the gym or eating broccoli.

But it’s still constitutional for the federal government to require that citizens buy insurance, he says, because the insurance market is governed by the commerce clause.

The case for “yes” :  Judge Roger Vinson, the federal judge in Florida who struck down the health care law as unconstitutional earlier this week, wrote in his opinion that the health care market is not so “unique” that it should be viewed as fundamentally different from other markets, like the ones for food or clothes or other goods.

Everyone has to eat, he points out, and Supreme Court precedent has established that the food market is governed by the “commerce clause.”

So, under the logic of an individual mandate being legal, “Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system.”

Would voiding the health care law be "judicial activism"?

The case for “yes.”  Sen. Dick Durbin, the Democrat (and Georgetown University law grad) who chaired the hearing, argues that the judges who have struck down the health care law are “activists” because they’ve used a line of reasoning that doesn’t appear in any previous Supreme Court cases. He says that Judge Roger Vinson’s distinction between the act of buying health insurance and the act of failing to buy health insurance is unprecedented.

“Sometimes lower court judges — many might be characterized as activists by their critics — try to make new law. And this has happened in Florida and Virginia as judges, I believe, have ignored the precedents and created a new legal test distinguishing activity from inactivity — a distinction that can't be found anywhere in the Constitution or Supreme Court precedent.”

The case for “no.”  Taken literally, any time a judge or the justices strike down a law passed by Congress or by a state legislature, it is described as “judicial activism,” as opposed to judicial passivism or judicial self-restraint.

But Carvin says that judicial activism really should be defined as a court’s taking of the merits of a policy into account rather than the constitutionality of the law. “It's unfair to label activities which strike down laws as unfair judicial activism,” he says. “Judicial activism, to me, is striking down a law that is constitutional because you think it's a bad policy.”

“No one …  is going to tell you it would be judicial activism that strikes down a law that denies women the vote, because we can all look at the Constitution and realize that that's blatantly unconstitutional,” he added.

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