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States' constitutional challenges don't pass muster

I, like millions of my fellow citizens, am deeply grateful for the leadership our president and congressional Democrats have shown by bringing critically needed reform to our nation's dysfunctional health care system. Some opponents may have legitimate objections to the concept of mandatory health insurance, including the 13 state attorneys general who have challenged the statute on constitutional grounds.

I believe such constitutional challenges will ultimately fail, as the insurance mandate falls squarely within Congress's Article I powers to regulate interstate commerce.

As a policy matter, Congress determined that health reform must include a responsibility requirement such as the $695 levy on those who forgo coverage. If everyone isn't included, then the government will continue to bear the high costs of paying for the uninsured, and the system will become unsustainable. This policy determination provides a "rational basis" for the tax on the uninsured, all that is needed for congressional action to be constitutional.

The Supreme Court has long acknowledged Congress' powers to regulate economic activity between the states, and it has specifically found that insurance regulation is within Congress' authority. In 1944, Justice Hugo Black wrote in U.S. v. Southeastern Underwriters Association that insurance "is commerce" and congressional regulation is presumptively valid. The court has neither overruled nor reinterpreted this principle.

Indeed, congressional regulation of interstate commerce to enhance the health and welfare of Americans has been common for at least two generations in the form of Social Security and Medicare. Further, the Supreme Court (Gonzalez v. Raich), has acknowledged congressional authority to regulate interstate commerce as recently as 2005. That decision was joined by Justice Antonin Scalia, a jurist hardly noted for his socialist leanings.

Libertarian-minded opponents of the law seem troubled by the notion that health insurance is being forced on individuals. As I understand this argument, the new law is a type of government encroachment from which citizens should be protected by our liberties as embodied in the Bill of Rights. But there is simply no provision in the Bill of Rights that trumps Congress' right to regulate interstate commerce. In fact, no such provision has ever been cited by the law's opponents.

Given the lack of a legitimate argument, I can only regard the action by the 13 attorneys general as political posturing. Such irresponsible action by political leaders seems to be the rule of late, rather than the exception.

I will never forget the spectacle of New York Rep. Peter King miming the slapping of the speaker of the House from a balcony of the people's house. Such pandering behavior, while headline-grabbing in the short term, will in the end be dismissed as the empty spectacle of political opportunists with no legitimate grievance.

Frank Housh is a lawyer in Buffalo.

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