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The Constitutional Debate About Health Care Reform

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Before the end of the year, many Americans will start to experience the initial portions of the Health Care Reform Bill, signed into law in March by President Obama. Other changes won’t take place until 2014, including the most contentious: the individual mandate to purchase health insurance. On today’s show: the Constitutional debate about health care reform. We’re joined by two experts in Constitutional Law – Georgetown Law Center Professor Randy Barnett, a vocal critic of the individual mandate; and Jack Balkin, a Yale Law professor and celebrated legal blogger who supports the law.

Listen to this episode.

Segment 1: The Individual Mandate Is Unprecedented and Unconstitutional

Guest: Randy Barnett, Carmak Waterhouse Professor of Legal Theory at the Georgetown Law Center

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When the health care reform bill passed by the slimmest of margins on a party-line vote earlier this year, state attorneys general were already lining up to challenge the bill on the grounds that it was unconstitutional. The main point of contention: the bill's mandate requiring individuals to purchase health insurance. Starting in 2014, failure to purchase insurance will result in a fine. At least 20 states are currently challenging the bill in court, most by Republican attorneys general or in Republican-leaning states, which contributes to the perception that the legal challenges are politically motivated.

The lawsuits, like the one filed by Virginia Attorney General Ken Cuccinelli, challenge the new bill's right to regulate and tax a person's decision not to participate in interstate commerce. In August, a U.S. district judge denied the Justice Department's attempt to have Cuccinelli's lawsuit dismissed. Additional hearings have been set for October. For its part, the federal government challenges the notion that the bill taxes commercial inactivity, saying that those who refuse to buy health insurance are merely shifting the financial burden to other taxpayers when those uninsured inevitably receive care, in most cases expensive emergency care.

So is the mandate to buy health insurance constitutional? And are legal challenges likely to end up being debated in the Supreme Court?

Randy Barnett is a professor of legal theory at the Georgetown University Law Center, where he teaches constitutional law. He questions the health care bill's constitutionality and supports the legal challenges being pursued Virginia's Ken Cuccinelli and others.

Segment 2: It's Not a Mandate, It's a Tax. And It's Constitutional
Guest: Jack Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School and founder of and contributor to the Balkinization Blog

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So, is health care reform ushering in a new era that empowers the government to force individuals into contracts with private businesses? Or is the individual mandate to buy health insurance - scheduled to go into effect in 2014 - a unique solution to a unique problem? And is this solution ... constitutional?

In June, Professor Jack Balkin, along with two constitutional law professors from Columbia University, submitted an amicus brief in support of the federal government's motion to dismiss a lawsuit filed by Virginia Attorney General Ken Cuccinelli challenging the individual mandate to buy health insurance. In August, US District Court Judge Henry Hudson refused to dismiss Cuccinelli's lawsuit, stating that legal precedents were inconclusive. It might take years, but the lawsuit could be on its way to the Supreme Court.

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