Will hopes that at least one of the lawsuits challenging the law will prevail, and he has helped advance opponents' arguments against the law. Will, like other opponents, believes that the Affordable Care Act's individual coverage provision, set to take effect in 2014, is the key to scuttling the law. Take that provision out, and the entirety of the law collapses, many believe. The provision provides that most Americans must maintain health care insurance starting in 2014 or pay a tax. The opponents of the law, argue that the provision exceeds congressional power and is therefore unconstitutional.
Will, in a recent column for The Washington Post, asks whether Congress has "seized, by increments, a sweeping police power that enables it to do virtually anything it wants?" The columnist says Texas Supreme Court Justice Don Willett has provided an answer in a recent state court opinion that he hopes federal court judges will emulate. The Texas judge wrote that legislative power is not unlimited. "There must remain judicially enforceable constraints on legislative actions that are irreconcilable with constitutional commands," Willet wrote.
The individual coverage provision is far outside Congress' power to regulate commerce or tax and spend, Will continues, so federal judges must strike it down regardless of lawmakers' enactment of the law. Striking down the health care law would not amount to judicial activism, Will writes, but instead would show judges are following their duty to determine whether the law is constituitonal.
Simon Lazarus, an expert on the health care law litigation, public policy counsel for the National Senior Citizens Law Center and author of an ACS Issue Brief on the constitutionality of the individual coverage provision, took to task several of Will's points.
Lazarus told ACSblog, "George Will once again reiterates, as he has ad nauseum, health reform opponents' tired ‘inactivity' canard, as if he is unaware of (perhaps he is) that the only decisions on the merits yet to issue from federal judges have flatly rejected that sound-bite and upheld the constitutionality of the health reform law. The one new thing in this otherwise repetitive piece is his discovery of the notion that "engaged" judges are needed to strike down health reform - a new dog-whistle euphemism for the "activist judges" he openly hoped for in earlier iterations."
Other constitutional law experts argue that it is well within Congress' constitutional powers to regulate the health care insurance market, and that to rule otherwise would ignore longtime federal court precedent.
In a column for Politico, constitutional law scholar, Erwin Chemerinsky writes, "Under an unbroken line of precedents stretching back 70 years, Congress has the power to regulate activities that taken cumulatively have a substantial effect on interstate commerce. People not purchasing health insurance unquestionably has this effect.
Chemerinsky, founding dean of the University of California, Irvine School of Law, continues, "Congress also could justify this [the individual coverage provision] as an exercise of its taxing and spending power. Congress can require the purchase of health insurance and then tax those who do not do so in order to pay their costs to the system. This is similar to Social Security taxes, which everyone pays to cover the costs of Social Security system. Since the 1930s, the Supreme Court has accorded Congress broad powers to tax and spend the general welfare and has left it to Congress to determine this."
Virginia Attorney General Ken Cuccinelli, who is leading one of the lawsuits against the health care law, said over the weekend that he is contemplating asking the U.S. Supreme Court to hear the case on an expedited track - essentially cutting the federal appeals court out of the process. According to the Richmond Times-Dispatch, Cuccinelli asserts that "having the case heard directly by the U.S. Supreme Court could save a year or more from the traditional process, which calls for the case to be heard by the 4th U.S. Circuit Court of Appeals in Richmond."
But University of Virginia law professor A.E. Dick Howard told the newspaper that such a move is "an extraordinary measure, in that it is rarely done."
Lazarus, in an interview with ACSblog, said, "Even for a politician as eager for media attention as Attorney General Cuccinelli, threatening to by-pass appellate review in the Fourth Circuit is an over-the-top grandstanding stunt. He seems to have forgotten that courts follow procedures prescribed by law for good reason, to decide actual cases and controversies affecting real persons, not just proclaim fiats on the hot political issues of the day. Mr. Cuccinelli seems to have been non-plussed by the reality-check of Judge Moon's November 30 decision rejecting his claims and upholding the health reform law, perhaps here bent on deflecting media attention."