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ACA's Fate Rests with Court

Margaret Dick Tocknell, for HealthLeaders Media, March 29, 2012

A question of commerce
In one of his first questions, Justice Kennedy asked if the government could force someone into commerce in order to regulate them under the commerce clause." That could be the distinction, Barker explains, between this case and Wickard vs. Filburn, which is the case the government is relying on for the mandate.

That New Deal case tested the powers of Congress to regulate the grain market and keep grain prices in check by limiting the amount of grain that could be produced by any one farmer. Filburn, an Ohio farmer, contended that he could grow as much grain as he wanted because he was using the excess for his family. In that case the court ruled that activity constitutes commerce even if the activity doesn't have an impact on interstate commerce.

For PPACA the administration is arguing that inactivity—not purchasing health insurance—falls under the same ruling because people who don't purchase health insurance make it more difficult and costly for those who do. Solicitor General David Verrilli argued that "what is being regulated is the method of financing the purchase of healthcare. That itself is an economic activity with substantial effects on interstate commerce."

In reviewing the transcript, Verrilli seemed to struggle with this argument as Justice Scalia and Chief Justice Roberts asked if the government could require the purchase of cell phones and even broccoli under the commerce clause.

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2 comments on "ACA's Fate Rests with Court"


Rob (3/29/2012 at 6:53 PM)
My question is, why are they even debating severability? If I understand correctly, Congress often/usually includes severability clauses in legislation, but elected not to in this case. Doesn't that mean that if any provision is struck down, the law should be struck down? Any thoughts on that from those who have studied more than I have?

Marc Rogers (3/29/2012 at 11:23 AM)
This law needs to be overturned for many reasons. It was fraudulently sold to start with and has clearly unconstitutional elements at the heart of it. Congress should start over and this time actually know what they are passing. A bad law that is not in comformity with Federal powers [INVALID] not to mention the untold number of regulations that result [INVALID] is simply not something that should be salvaged.