U.S. Supreme Court

Day Two of Health Law Arguments: Focus Is on Congress' Commerce Clause and Taxing Power


The U.S. Supreme Court will hold two hours of arguments today on the constitutional questions in the health care case.

The issue is whether Congress had the authority to require most Americans to buy health insurance or pay a penalty, according to the New York Times, ABAJournal.com and the Washington Post.

Solicitor General Donald Verrilli Jr. says Congress was authorized to act under the commerce clause, which allows regulation of economic activities that have a substantial effect on interstate commerce. Uninsured Americans are unable to pay for $43 billion in health care each year, essentially transferring the costs to other Americans, he argues.

Verrilli also argues that the insurance mandate can be upheld under Congress’ power to tax and spend. The penalty for those who don’t buy insurance is calculated as a percentage of income and paid with taxes due in April, the Times says.

Lawyers for those challenging the law say Congress cannot force those who are not engaged in commerce to buy a product—in this case, health insurance. Lawyer Paul Clement, who represents 26 states challenging the law, says the government’s position amounts to “a revolution in the relationship between the central government and the governed.” He also argues the penalty is not a tax.

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