, Derry, New Hampshire

July 5, 2012

Health-care ruling was all about 'allowable power'

About the law
Andrew Myers

In a long anticipated decision, the U.S. Supreme Court has upheld the constitutionality of sweeping new federal health-care legislation. But, the late June decision sheds more light on how government claims a right of power than about heath care.

Most observers expected the court to base its final determination on the concept of federalism. The framers of the U.S. Constitution envisioned federal government with limited specified powers, reserving all other powers to the states. So, under the commerce clause, the issue was whether Congress could use its power to require everyone to buy health insurance.

The commerce clause allows Congress to regulate commerce and activities that substantially affect interstate commerce. That power has been held to authorize federal regulation of things like what farmers grow and extortion by loan sharks. These are the court's examples, not mine. Simply put, the court fell one vote short of upholding the law on that basis.

But, Chief Justice John Roberts wrote that the court is reluctant to invalidate acts of Congress. "Proper respect for a co-ordinate branch of the government" means that the Supreme Court will strike down laws only with clear demonstration of unconstitutionality.

The proposed health-care law failed to meet the court's standards for allowable power of the federal government under the concept of limited power. But, the analysis didn't end there.

The law requires most people to have health insurance through an employer or to buy it on their own by 2014. The law itself never uses the word "tax." It says those who fail to comply with the mandate must pay a "shared responsibility payment" or a "penalty" to the federal government. But, whatever Congress called it, violators pay the Internal Revenue Service, facing the same collection and enforcement powers otherwise exercised by the IRS. So, the court found the law imposes a tax.

The Supreme Court noted that one of Congress' many powers is to "lay and collect taxes, duties, imposts and excises." This, the court found, gives the federal government considerable influence even in areas where it cannot directly regulate." Because the Constitution permits such a tax, "it is not our role to forbid it, or to pass upon its wisdom or fairness."

Although upholding the law, Chief Justice Roberts wrote this: "We possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our nation's elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices."

The name of the case, the "case caption" as attorneys refer to it is "National Federation of Independent Business, et. al, v. Kathleen Sebelius, Secretary of Health and Human Services, et. al." The petitioners, independent business, lost. The government won.

• • •

Andrew Myers of Derry has law offices in Derry and North Andover. He is a member of the American Association for Justice and the New Hampshire Trial Lawyers Association. Send questions to