November 1st, 2011

Health care law provokes strong reactions

Is it the Patient Protection and Affordable Care Act (PPACA) or is it Obamacare (O)? A person can tell whether or not someone likes or dislikes this federal legislation by the name he uses to describe it.

The law’s name is PPACA, but opponents have dubbed it Obamacare. The use of vocabulary to frame discussion is similar to the concepts of language used in the debate surrounding abortion. Those who are in favor of the availability of abortion use the phrase “a woman’s right to choose,” while opponents use the phrase “right to life.” Vocabulary is a very powerful tool.

In The Constitution of the United States (U.S. Constitution), there are two sections that will be discussed and dissected among other legal concepts during litigation concerning PPACA/O.

The first section, known as The Supremacy Clause reads as follows: “This Constitution, and the Laws of the United States which shall by made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

The Supremacy Clause could be interpreted to mean that the PPACA/O is a “…Law of the United States which shall by made in Pursuance thereof…” And the phrase “in Pursuance thereof” states one of the issues. Does the PPACA/O violate some part of the U.S. Constitution or did Congress not have such a power given to it by the U.S. Constitution to enact such a law?

When considering the power to enact such a law, another part of the U.S. Constitution needs to be considered. That section is Article 1, Section 8 – Powers of Congress, familiarly known as “The Necessary and Proper Clause.” It states: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

The Necessary and Proper Clause needs a power in the U.S. Constitution in order to enact “all laws which shall be necessary and proper…” One of the issues that the Constitution permits Congress to regulate is commerce among the states (“interstate commerce”). Is medical care in interstate commerce?

The law raises many questions. It’s been challenged in a number of federal courts. One issue is whether or not the parties who have brought suit against implementation of PPACA/O have standing (the legal right) to bring the challenge. Just because someone does not like a law does not necessarily give that person the right to sue. Another question is “Did the Congress have the power to enact the PPACA/O in its present form?” This issue is, at least partially, based on the question of whether Congress can tax someone who does not have health insurance. This question is complicated regarding individual rights in our system of government. Hidden in the myriad of issues is whether the states can sue the federal government regarding the enforcement of these rights.

During discussions of the PPACA/O there will be mention of “socialism.” This use of vocabulary confuses political and economic concepts. The Constitution frames a political structure not an economic structure. Discussion of “socialism” may have emotional appeal but should probably not determine the outcome. History gives us guidance but does not preclude adjustment of ideas or attempts at different implementations of the legal system.

Each side believes that its position is correct and that the opposing view is contrary to our constitutional beliefs and rights. The federal circuit courts which have heard the case have split on the constitutionality of the PPACA/O.

Massachusetts already has a law similar to PPACA/O. In the years of mandated health care in Massachusetts the sky hasn’t fallen and the market place has, and will continue to adjust, to fund health care. Other states that have no such law will be watching these cases closely. Presumptively, the Massachusetts health care mandate will continue no matter what occurs on the federal level. Psychologists’ practices are impacted by patients having health care insurance or not. The mandating of health insurance is a major issue in the PPACA/O.

It appears that the Supreme Court of United States should decide these matters.

The Supreme Court may wait until more of the Federal Courts of Appeal have issued rulings to get a better picture of the complex legal issues involved.

And, if the Supreme Court decides that only some of the portions of the PPACA/O are unconstitutional, will it invalidate the entire law or only those portions that a majority of the justices rule to be unconstitutional? Most laws have a severability section which allows for partial nullification. But the PPACA/O does not appear to have such a section.

The last question involves timing. Will this issue come before the Supreme Court soon or be decided during next year’s presidential election and become a primary factor in the election’s outcome? If the Supreme Court hears and decides this matter, the legal issues should decide the case rather than the merits of whether someone likes or dislikes the PPACA/O. The Congress passed the law and the President signed it. Congress could pass a new law abolishing the mandate in the future, if the law is acceptable but needs to be changed.

Edward M. Stern, J.D., has a private law practice in Newtonville, Mass., Stern serves as assistant dean for pre-law advising at Boston University and is a visiting lecturer for the University of Massachusetts/Boston Department of Sociology.

By Edward Stern J.D.

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