House Judiciary Committee Holds Hearing to Examine Individual Mandate

Capitol Building.jpgOn Wednesday, the House Committee on the Judiciary met to discuss the constitutionality of the Affordable Care Act’s individual insurance mandate, which will require most individuals to purchase health insurance – and large employers to provide minimal essential health coverage to their employees – starting in 2014 or pay a penalty. Earlier this month, the Senate Judiciary Committee held a similar hearing. During the House hearing, Virginia’s Attorney General, as well as constitutional law scholars, debated the legality of these provisions.

In essence, the main claim against the new law is that Congress exceeded its powers under the Commerce Clause by enacting the “pay or play” provisions. Kenneth Cuccinelli, Virginia’s Attorney General who filed a lawsuit on behalf of the state against enforcement of the Affordable Care Act, explained (pdf) that “the gravamen of Virginia’s suit is that the claimed power exceeds Congress’s enumerated powers because it lacks any principled limit and is tantamount to a national police power – that is, the power to legislate on matters of health, safety and welfare that was considered part of the reserve powers retained by the States at the time of the Founding.” In addition, Cuccinelli argued that the obligation to pay a penalty if one does not buy or provide health insurance constitutes an unlawful tax. According to Cuccinelli, Congress exceeded its power to impose taxes as “it is not bounded by any principled limits, and therefore, arrogates to the federal government a national police power denied to it by the Constitution.” Cuccinelli contended that: “Section § 1501 of Patient Protection and Affordable Care Act seeks to regulate inactivity affecting interstate commerce, a claimed power well in excess of the affirmative outer limits of the Commerce Clause, even as executed by the Necessary and Proper Clause.”

Professor Randy E. Barnett similarly testified (pdf) that the mandate is unconstitutional, as it is “not regulating any economic activity. It is quite literally regulating inactivity.”

In contrast, Professor Walter Dellinger argued (pdf) that the Act is, indeed, constitutional. According to Dellinger: “The assertion that the national Congress lacks the constitutional authority to adopt these regulations of the national commercial markets in health care and health insurance is a truly astonishing proposition. When these lawsuits reach their final conclusion, that novel claim will be rejected.” He explained that without the individual mandate “there would an incentive for people who are now guaranteed coverage to postpone purchasing health insurance until they already sick. That critical fact about the interstate market in health insurance provides a full and sufficient basis for Congress to provide a financial incentive for individuals to maintain adequate health insurance coverage.”

An archived web cast of the hearing can be accessed here.

A number of courts have already addressed this issue. In December 2010, a Virginia federal court judge ruled in the suit brought by Cuccinelli that the mandate was unconstitutional. Last month, a federal court judge in Florida similarly held that the individual mandate was unconstitutional, and invalided the entire law. Two other federal district courts, however, have come to the opposite conclusion, upholding the law’s legitimacy. Due to these differing conclusions, Supreme Court review of the law is likely.

Other House and Senate committees have conducted hearings this year to discuss various aspects of the new health care law apart from its constitutionality. Earlier this month, the House Committee on Education and the Workforce convened to examine how the Affordable Care Act impacts the workforce and job creation. In January, separate House and Senate committee hearings also addressed how the Affordable Care Act impacts the workforce. More hearings are expected.

This entry was written by Ilyse Schuman.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.