Ensuring Health-Care Reform Is Legal

Monday, August 31, 2009

In their Aug 22 op-ed, "Illegal Health Reform," David B. Rivkin Jr. and Lee A. Casey concluded that some proposals for national health-care reform are unconstitutional. They acknowledged that the commerce clause allows the federal government to regulate all economic activity but then reached the odd conclusion that health care, which constitutes 16 percent of our national economy, is not economic activity. They also cited a 1922 case to claim that Congress cannot use the taxing power to regulate, but Congress uses tax subsidies and penalties to encourage or discourage just about everything Americans do, including the purchase of health insurance.

If there was any question about the constitutionality of the proposed legislation (and most academics believe there is not), there is a simple fix. In 1937, the Supreme Court held in Helvering v. Davis that a universal contributory tax to fund a national social program, Social Security, was constitutional. Similarly, Congress could now require all Americans to pay premiums to enroll in a public health insurance plan.

Congress could then allow the privately insured to opt out, just as Americans who enroll their children in private schools can opt out of universal education requirements. This should resolve all potential problems and would be good public policy as well.



The writer, a law professor, is the author of a textbook on health law.

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