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USA Today/ - News, Dom, 01 de Abril de 2012
CLIPPING INTERNACIONAL (Supreme Court)
Ask an Expert: Entrepreneurs gain from
health care law
Q: Steve: I own my own micro-business and was
wondering whether you care to weigh in o the health
care debate before the Supreme Court. I just don't get
how Congress could pass a law that makes me buy
health insurance. Personally, I think it is un-American.
— Teddy
A: The easy, the visceral, thing to do in this case is to
say — "Congress doesn't have the right!" Right?
But actually, it just might have that right.
COLUMN: Index of Steve Strauss' Ask an Expert
columns
Today, let's look at those few fascinating words in the
Constitution that make up the doozy called the
commerce clause, because that is the crux of this
whole enchilada, and before you get bored and surf on
after reading the words "commerce clause" let me
suggest that understanding it is not only vital for an
informed electorate, but in fact insofar as small
business goes, just may be the simple, few words that
change forever how you buy health insurance for you
and your staff.
Lets start with the easy stuff:
You have to buy auto insurance if you want to drive,
don't you? And you have to wear a seat belt, don't
you? And you have to stop at red lights, right? There
are all sorts of things legislatures tell you to do and not
do. That is what a law is: It is a directive that you can
or cannot do something.
Is telling you to buy health insurance all that different?
Maybe, but maybe not.
Consider: In 1964, Congress passed the Civil Rights
Act. There it told individuals and businesses that they
could not discriminate based on race, color, religion or
national origin.
And that then begs the question: Is telling someone
they have to sell coffee to someone really that different
than telling someone they have to buy insurance from
someone?
The question goes to the heart of the clause. It comes
from Article I, Section 8, Clause 3 of the Constitution.
It says that Congress shall have the power to "regulate
Commerce . . . among the several States." The
commerce clause has, almost since our founding,
been adjudicated to mean that Congress has broad
powers to regulate interstate activities.
How broad are those powers? That is the debate
today, and has been for some time. The broad scope
of the commerce clause was first enunciated in 1824,
in Gibbons v. Ogden, when the Court ruled that the
power to regulate interstate commerce was broad
enough to include the power to regulate interstate
navigation over water.
In 1914, in Houston E&W Texas Railway Co. v. U.S.,
the Court said that,
[I]n all matters having such a close and substantial
relation to interstate commerce . . . it is Congress, and
not the State, that is entitled to prescribe the final and
dominant rule, for otherwise Congress would be
denied the exercise of its constitutional authority and
the State, and not the Nation, would be supreme within
the national field.
In subsequent years, the Court, when liberal,
expanded powers under the commerce clause, and
then, beginning with the Rehnquist court in the '80s,
began to limit those powers.
So the issue today is two-fold:
1. Does Congress have the power under the
commerce clause to enforce an individual mandate,
and
2. Are there individual liberties at stake that trump that
power?
That the decision to buy or not buy health insurance
substantially impacts interstate commerce almost goes
without question. And that then brings us to No. 2, the
hard stuff. Even if the commerce clause is applicable,
is this one of those places where it needs to be
limited?
You have your opinion, I have mine. Before I share
mine, I would also like to share two short, illustrative
health care stories I recently heard:
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