By Bill Golden
The Obama administration has now adopted a strategy of trying to preempt court consideration of the constitutionality of the Health Care Reform Act by arguing that states have no legal basis or standing to challenge the Health Care Reform Act.
A secondary Obama administration argument is that Congress has the power to regulate interstate trade and that authority is enough by itself to make the measure constitutional.
The Obama administration challenge is officially being made by Secretary of Health and Human Services Kathleen Sebelius, now known as ‘Virginia v. Sebelius‘.
Virginia is being made the test case to see if the federal strategy will work. Virginia must respond by June 7th to the federal challenge.
Federal attorneys argue that individuals, not the state, are affected by the requirement to buy health insurance, meaning that the state has no standing to sue over the issue.
CHALLENGE: The Health Care Reform Act forces both individuals to buy something that they did not previously have to (5th Amendment protection – you do not lose rights just because they are not specifically listed in the Constitution; in this case you and I have a right to not buy health care insurance) and the new law forces states to increase their financial support and thus to increase taxes for delivery of medical services (health care high risk pools, medicare, etc.).
Actions by the federal government that classify individuals in a discriminatory manner violate the due process of the fifth amendment. “Discrimination” in this sense is that the Health Care Reform Act forces some individuals, but not others, to purchase health insurance.
A counter argument is that all Americans are required to purchase health insurance, but receive an exemption if they can prove that they purchased a policy personally or through their employer.
A reasoned position by Virginia is that it is representing the collective rights of its citizens in both cases, by protecting both their individual rights and the phantom requirement to increase state taxes in order to provide additional non-federally funded medical services.
Fifth Amendment, U.S. Constitution
‘No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.’