American Future Fund Fearmongers About The Constitutionality Of Health Care Reform

October 08, 2010 2:24 pm ET

The American Future Fund isn't an organization that would let a misleading sound bite go to waste. In the attack ad they've launched against Rep. Phil Hare (D-IL), AFF leads with a deceptively edited clip of Speaker Nancy Pelosi stating that "we have to pass the [health care] bill so that you can find out what's in it." The organization then calls the constitutionality of the legislation into question, highlighting comments made by Hare in which he stated that he didn't "worry about the Constitution" with respect to health care reform. The ad, of course, doesn't mention the fact that constitutional scholars from across the country agree that the individual mandate is well within the constitutional bounds of Congress, an opinion recently bolstered by a Michigan federal judge's ruling in favor of the constitutionality of the law.

American Future Fund: "Worry"

Remember Nancy Pelosi on health care? [PELOSI:] "We have to pass the bill so that you can find out what is in it." Now listen to Phil Hare, who votes with Pelosi's majority nearly 99% of the time, on whether the bill is constitutional. [HARE:] "I don't worry about the Constitution on this to be honest." Hare voted to spend a trillion dollars, raise taxes, and government can mandate that you buy insurance. But Hare says: "I don't worry about the Constitution on this to be honest." Phil Hare doesn't deserve re-election. American Future Fund is responsible for the content of this advertising.

In Context, It Is Clear Speaker Pelosi Was Referring To "Fog Of Controversy" That Obstructed Understanding Of Affordable Care Act

Speaker Pelosi: "You've Heard About The Controversies" But Not The Actual Content Of The Affordable Care Act. In March 2010, Speaker Pelosi said:

You've heard about the controversies within the bill, the process about the bill, one or the other.  But I don't know if you have heard that it is legislation for the future, not just about health care for America, but about a healthier America, where preventive care is not something that you have to pay a deductible for or out of pocket.  Prevention, prevention, prevention-it's about diet, not diabetes. It's going to be very, very exciting.  

But we have to pass the bill so that you can find out what is in it, away from the fog of the controversy.  Furthermore, we believe that health care reform, again I said at the beginning of my remarks, that we sent the three pillars that the President's economic stabilization and job creation initiatives were education and innovation-innovation begins in the classroom-clean energy and climate, addressing the climate issues in an innovative way to keep us number one and competitive in the world with the new technology, and the third, first among equals I may say, is health care, health insurance reform.  Health insurance reform is about jobs.  This legislation alone will create 4 million jobs, about 400,000 jobs very soon.

We must have the courage, though, to get the job done. We have the ideas.  We have the commitment.  We have the dedication.  We know the urgency.  Now we have to have the courage to get the job done. So proud that President Obama is taking the message so forcefully to the American people! This is long overdue, a hundred years. [Speaker Pelosi Remarks, 3/9/10, emphasis added]

Individual Mandate Ruled Constitutional By Federal Judge

Michigan Judge Ruled The "Individual Mandate" Constitutional. According to the Washington Post:

A federal judge in Michigan ruled Thursday that the new health-care overhaul law is constitutional, rejecting an argument that Congress lacked the power to create the legislation's "individual mandate," which requires virtually all Americans to purchase health insurance.

Other federal courts have already dismissed some challenges to the law on technical grounds - ruling, for instance, that the plaintiffs lacked standing. However, the decision issued Thursday by Judge George Caram Steeh of the Eastern District of Michigan is the first to reject a claim based on the merits, marking a notable victory for the Obama administration.

The plaintiffs, three people and the Thomas More Law Center, a nonprofit public interest law firm in Ann Arbor, had objected to being compelled to choose between buying health coverage that they do not want or paying a tax penalty that, they argued, would go into the nation's general fund and could end up paying for abortions.

They further argued that because the decision not to buy insurance is a form of inactivity rather than an economic activity, it is not covered by the clause of the Constitution that grants Congress the power to regulate interstate commerce.

However, Steeh found that "far from 'inactivity,' by choosing to forgo insurance, plaintiffs are making an economic decision to try to pay for health-care services later, out of pocket, rather than now through the purchase of insurance, collectively shifting billions of dollars . . . onto other market participants." Therefore, Steeh ruled, regulating this decision falls well within the scope of Congress's authority to regulate the health insurance market.

[Washington Post, 10/7/10, emphasis added]

Legal Experts Agree That Individual Mandate Is Constitutional

NSCLC's Lazarus: Arguments Against The Individual Mandate On Constitutional Grounds "Have No Basis In Law." According to an issue brief published by the American Constitution Society for Law and Policy and written by the National Senior Citizen Law Center's Simon Lazarus: "The same goals and choice of means fit the mandate snugly within precedents broadly defining Congress' authority to tax and spend. Opponents' arguments to the contrary express philosophical objections to the concept of mandatory health insurance in principle, without regard to the practical issues the Supreme Court has always used to evaluate laws challenged as outside Congress' interstate commerce authority: the practical impact of the mandate on commerce or the public welfare or the welfare of affected individuals, or the rationality of Congress' judgments about its impact on statutory goals. No doubt, in some quarters, opponents' libertarian views are deeply felt. But they have no basis in law, neither in the grants of authority to Congress in Article I nor in limitations on that authority in the Bill of Rights, nor in the case law interpreting these provisions." [ACSLaw.org, December 2009, emphasis added]

Constitutional Law Professor Stewart Jay: "The New Health-Care-Reform Legislation Is Unquestionably Constitutional." According to an op-ed in the Seattle Times, University of Washington Law professor Stewart Jay argues that: "UNLESS some 70 years of U.S. Supreme Court rulings are reversed, the new health-care-reform legislation is unquestionably constitutional. ... In scores of cases, the Supreme Court has upheld broad congressional power to deal with economic issues affecting the nation through its powers of taxation, spending and control of interstate commerce. Health care accounts for 17 percent of the economy, and both the spiraling costs and the absence of coverage for tens of millions are undeniably problems demanding national solutions." [Seattle Times, 4/2/10, emphasis added]

Yale Law Professor Amar: "The Current Plan Easily Passes Constitutional Muster." According to an op-ed in the Los Angeles Times, Yale Law professor Akhil Reed Amar argues that: "I'm no healthcare expert, but I have spent the last three decades studying the Constitution, and the current plan easily passes constitutional muster. It's true that the Constitution grants Congress authority to legislate only in the areas enumerated in the document itself. Other matters are left to the states under the 10th Amendment. But if enumerated power does exist, the 10th Amendment objection disappears. Under the interstate commerce clause of Article I, activities whose effects are confined within a given state are to be regulated by that state government, or simply left unregulated. But the federal government is specifically empowered to address matters that have significant spillover effects across state lines or international borders. ... The healthcare bill clearly addresses activities that cross state lines." [Los Angeles Times, 1/20/10, emphasis added]

Yale Law Professor Balkin: "Constitutional Challenges" To Health Care Law "Are Unlikely To Succeed." In an article published by the New England Journal of Medicine, Yale University Law Professor Jack Balkin stated that: "Although opponents will challenge the individual mandate in court, constitutional challenges are unlikely to succeed. The Supreme Court will probably not even consider the issue unless a federal court of appeals strikes the tax down. In that unlikely event, the Supreme Court will almost certainly uphold the tax, at least if it follows existing law. To strike down the individual mandate, it would have to reject decades of precedents. It is very unlikely that there are five votes on the current Court for staging such a constitutional revolution." [NEJM.org, 2/11/10]

UC Irvine Law School Dean: "There Is No Doubt That Bills Passed By House And Senate Committees Are Constitutional." According to an op-ed by the Dean of the University of California, Irvine's Law School: "Those opposing health care reform are increasingly relying on an argument that has no legal merit: that the health care reform legislation would be unconstitutional. There is, of course, much to debate about how to best reform America's health care system. But there is no doubt that bills passed by House and Senate committees are constitutional. Some who object to the health care proposals claim that they are beyond the scope of congressional powers. Specifically, they argue that Congress lacks the authority to compel people to purchase health insurance or pay a tax or a fine. Congress clearly could do this under its power pursuant to Article I, Section 8 of the Constitution to regulate commerce among the states. The Supreme Court has held that this includes authority to regulate activities that have a substantial effect on interstate commerce. In the area of economic activities, "substantial effect" can be found based on the cumulative impact of the activity across the country." [Politico, 10/23/09, emphasis added]

For more on the American Future Fund's health care distortions, click HERE.

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