Is the new health care plan constitutional?

Tuesday evening I attended the Women Corporate Directors’ dinner at the offices of Perkins Coie.  I have been a founding member of the Seattle Chapter of WCD since it was organized about a year or so ago.  Phyllis Campbell and Annette Jacobs are the Co-Chairs of our chapter and we are one of 23 chapters in the world.  The mission of Women Corporate Directors is to offer forums for women who serve on Corporate Boards, where they can have a candid, thoughtful and confidential dialogue on issues facing directors and their companies.

Our featured speaker last night was Washington State Attorney General, Rob McKenna, who had been an attorney at Perkins Coie until he ran for public office.  He talked about some of the roles of the Attorney General’s office which includes handling all the legal services for state government.  In addition, they represent all the abused and neglected children in the state.  He mentioned a shocking statistic that during the first three months of 2010, there have been 1,100 new abused and neglected children cases and the total number for 2009 was 7,000 cases of abused and neglected children.  The Attorney General’s office also handles the prosecution of sexually violent predators.

He also took the time to carefully articulate the background on the lawsuit he is involved in regarding the recent health initiative passed by the U.S. Congress.  His issue and that of the lawsuit is not whether the new health plan is a good or bad policy, but instead whether it is actually constitutional.  His point is that the federal government does not have the power to compel the people to buy health insurance and that this is an issue whose power should be reserved for the people or the states.  One of the primary issues is whether the federal government can require people to go to the marketplace and buy anything; in this case health care insurance.  Though health care insurance is not a tax, the intention is that the enforcement of purchasing health insurance will be managed by the IRS since they do have the experience of compelling people to follow specific rules or face penalties.

In FAQs on his website, Attorney General McKenna makes the following points about the main provisions of the lawsuit:

1)      The unprecedented and unconstitutional requirement that individuals lacking health insurance must purchase private insurance or face a fine; and

2)      2) The massive expansion of the Medicaid program which will unconstitutionally require states to spend billions more on this program at a time when state budgets are already in crisis.

He and the other participants in the lawsuit believe both of these mandates represent expansions of federal authority that violate the 10th Amendment, which states that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” They’re also concerned the individual mandate violates the Commerce Clause because never before has Congress required all Americans to purchase a specific product in the private marketplace.

Though he was quite clear and specific in his remarks to the group that this lawsuit is not about actual health care policy, but constitutional issues instead, it was interesting to hear one of the WCD members chastise him for joining the lawsuit and “not recognizing the need for universal health care in our country”.