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Originally published Friday, April 2, 2010 at 2:59 PM

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Guest columnist

New health-care reform law is constitutional

The new health-care-reform legislation is unquestionably constitutional, writes University of Washington law professor Stewart Jay. Congress — and ultimately the people — should decide whether the plan is in the national interest, not a court.

Special to the Times

UNLESS some 70 years of U.S. Supreme Court rulings are reversed, the new health-care-reform legislation is unquestionably constitutional.

This does not mean the law is good policy. It means that Congress — and ultimately the people — should decide whether the plan is in the national interest, not a court.

In scores of cases, the Supreme Court has upheld broad congressional power to deal with economic issues affecting the nation through its powers of taxation, spending and control of interstate commerce. Health care accounts for 17 percent of the economy, and both the spiraling costs and the absence of coverage for tens of millions are undeniably problems demanding national solutions.

Congress concluded after extensive study that achieving universal health coverage required everyone who could afford insurance to participate. This spreads the risk pool and makes care affordable for most. The nation benefits by a healthier, more productive population, as well as lower health costs.

Federal insurance mandates are not new. In 1937, the Supreme Court approved Social Security and federal unemployment compensation, both funded by taxes on employers and employees. Social Security also insures against disability. Medicare is not voluntary — it forces people to buy health insurance. Congress also has passed many laws regulating health care, employee benefits and insurance.

The new law uses the same constitutional means that support these long-standing measures. It is a standard tax-and-spend program. Some pay higher taxes so that others benefit; those with health insurance get more favorable tax treatment. The tax system already is loaded with credits and rate differentials to encourage and discourage behavior, and this is no different.

The law also is a direct regulation of activities long held to be forms of interstate commerce: purchasing health care and insurance. Congress wants people to have insurance when obtaining care in order to hold down costs for all.

The states attacking the act argue that it differs from other federal mandates by penalizing "inactivity," the decision not to insure. The mandate will only apply to people who can afford insurance but would rather spend their money on something else, hoping they will have the funds for care if needed.

But everyone needs health care at some point. Congress had plenty of evidence that "self-insurers" often cannot afford the staggering costs of care when that unpredictable time comes. People without health insurance also are much more likely to postpone care until they need more expensive treatment at hospitals, which by law cannot turn them away. The rest of society pays the bill in the form of higher costs and taxes.

Another claim by the states is that they are being "coerced" into spending money on health care that they cannot afford in violation of the 10th Amendment. Precisely that argument was rejected by the Supreme Court in 1937. No state is required to participate. Any state can avoid the law's burdens by refusing to accept federal Medicaid money.

The lawsuit pleads that the states cannot balance their budgets without Medicaid dollars. This is a policy argument, not a constitutional claim. Medicaid funds, like all federal grants, come with strings attached, and the Supreme Court consistently has upheld these conditions for seven decades.

The attorneys general have picked the wrong forum. They are asking unelected judges to stop a program that has been fully aired in the political process and will continue to be the subject of public debates. The democratic solution for disgruntled citizens is to rally and vote. States can take their fiscal concerns to Congress. Elections, after all, have consequences.

Stewart Jay is a professor of constitutional law at the University of Washington School of Law.

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