From the Archives: 2011 Public Debate Regarding Constitutionality of Affordable Care Act in Rochester

Constitutionality of health care act debated

From left, Frank Housh, of the Law Offices of Frank Housh, and co-chair, Western New York Lawyers Chapter of the American Constitution; Ilya Shapiro, senior fellow in Constitutional Studies, Cato Institute, and editor-in-chief, Cato Supreme Court Review; and the Hon. Richard D. Rosenbloom (moderator), senior counsel, Boylan Brown, and former justice, New York Supreme Court, are seen during a debate of the constitutionality of the Patient Protection and Affordable Care Act, at the Central Library of Rochester and Monroe County on June 9 for a forum hosted by the Federalist Society. Vasiliy Baziuk

Opinions vary greatly on the new Patient Protection and Affordable Health Care Act, which is still in the forefront of public debate as provisions are phased in and challenges make their way through the courts.

The major issue in most of the challenges is a requirement that everyone must purchase health insurance by 2014. Some say it violates the Commerce Clause of the Constitution or doesn’t meet the Necessary and Proper Clause.

Two people who have read through the entire 2,700-page legislation debated its constitutionality Thursday in an open forum hosted by the Rochester Lawyers Chapter of the Federalist Society and the Western New York Lawyer Chapter of the American Constitution Society.

“This is about individual liberty,” said Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute in Washington, D.C., and editor-in-chief, Cato Supreme Court Review.

He respectfully disagreed with just about everything said by Frank Housh of The Law Offices of Frank Housh in Buffalo, co-chair, Western New York Chapter of the American Constitution Society.

Housh said it is about health care, which drives 17 percent of the nation’s gross national product.
Shapiro said an individual mandate is unprecedented and that the government has never required people to buy a good or service. He said it is being challenged by 28 states, which is also unprecedented.

Opponents of the law claim it exceeds the power of Congress to regulate interstate commerce by penalizing inactivity. Shapiro argued it goes beyond that; that inactivity would be sitting home doing nothing, but the law requires them to engage in economic activity by purchasing health insurance.

“This goes beyond anything the government has ever done,” Shapiro said. “If it’s allowed to do this, then there are no principled limits on how far the government can go.” He suggested there could be a broccoli mandate to ensure better national health or that people could be forced to buy other things.

Housh argued health care is one of the reasons why the country’s economic engine has stalled and that there are 50 million people without health care who will get care anyway under the 1986 emergency care act, which prohibits hospitals from refusing to treat patients if they are unable to pay.

He said 100 percent of people consume health care at some time in their lives and that it is ironic that the individual mandate Republicans are opposing, calling it socialist, was first introduced by them in 1993 in a failed attempt at health care reform.

Housh said the law makes people pay what they can and carries the virtues of self-reliance embraced by opponents.

“There is no question that Congress can regulate interstate commerce,” he said. “Insurance is interstate commerce. Congress can regulate insurance.”

Housh added that wherever Congress has the power to regulate commerce, it also has every powered needed to make its regulation possible and that Congress has had the power to regulate national interests for more than 200 years. He predicts the decision in the U.S. Supreme Court, where the matter is expected to end up, will be 8-1 that the law is constitutional.

Shapiro agreed the people give government the power to do things to enhance individual freedoms, but they also limit that power for the same reason.

They both agreed there would be no constitutional question if lawmakers had not rejected a single-payer system supported by taxes.

Housh also rejected Shapiro’s argument that the law is unprecedented, noting the Militia Act of 1795 (modified from 1792) required soldiers to purchase their own equipment. He also cited the draft, saying the government can and has made people risk and give their lives.

More than 20 people attended the program with one asking each speaker what happens if the Supreme Court rules against their viewpoint.

“If it’s denied, I predict a parade of horribles,” said Housh. “What is next?”

He suggested challenges to Social Security and Medicare will follow. Shapiro said he would have to find something else to do if it is upheld because the Constitution will no longer matter. He said if the law is struck down, Congress can go back and start over. He and Housh agree the nation’s health care system is not the best it can be.

Shapiro said win or lose, it will hurt President Barack Obama. He predicts if it is struck down, it will be seen as a failure of the president’s central piece of legislation, but if it is found constitutional, it will also energize the Republican base against Obama.

Carrie M. Paddock of Brighton asked if all regional health care companies would become national companies under what she called “the United Socialist States of America,” founded by people willing to work for what they have. She asked if everyone will be forced to pay for other people’s benefits because they won’t go out and earn them.

“This isn’t socialism,” Housh said, suggesting Paddock’s questions showed “a great deal of personal anger.” He said a universal single-payer system would have been socialism in some ways.

He and Shapiro agreed there is no reason to tie health care coverage to employment as is under the current system and that it could be run more efficiently if employers didn’t have to bear the cost.

Michael A. Rosenhouse of the Rosenhouse Law Office in Rochester said that while Congress can regulate insurance, it cannot force the companies to stay in the insurance business.

“If this stands up, maybe they can,” Shapiro said.

Housh said it is being done now with auto insurers, which are required to carry a percentage of risky individuals who cannot get insurance anywhere else.

The program was moderated by former New York State Supreme Court Justice Richard D. Rosenbloom, senior counsel, Boylan, Brown, Code, Vigdor & Wilson LLP, at the Central Library of Rochester and Monroe County.

Frank Housh argues in favor of the constitutionality of the PPACA. Vasiliy Baziuk

Ilya Shapiro argues his case against the constitutionality of the PPACA. Baziuk

Trilby de Jung, right, of Empire Justice, and Alea de Jung pose a question to the panel. Vasiliy Baziuk

Brad Salai, standing, poses a question to the panel on the constitutionality of the PPACA. Vasiliy Baziuk

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