法律英语：43 Is the Health Care Law Unconstitutional?

by Adam Freedman

Today’s topic: Is the health care reform law constitutional?
At the risk of stirring up controversy², I can’t resist dipping a toe into the current debate over the new health care bill.  One of my readers-Mary-writes in to ask whether the government can legally require citizens to purchase health insurance. Also, according to a highly-unscientific survey I’ve been running on my Facebook page, at least a few of you are curious about whether the health care law is unconstitutional.
Is the Health Care Bill Unconstitutional?
The short answer is: we don’t know yet--because courts have never had to consider anything exactly like the federal health care mandate³, and the court challenges are just getting underway. In this article, I’ll review some of the major arguments pro⁴ and con¹.
The Patient Protection and Affordable⁵ Care Act
On March 23, 2010, President Obama signed the Patient Protection and Affordable Care Act--otherwise known as “health care reform” or the “health care law” or sometimes even as “ObamaCare.” Before the ink was even dry, a variety of politicians and advocacy groups started filing lawsuits⁶ challenging the constitutionality of the law.
Will the Supreme⁷ Court Uphold the Health Care Law?
It appears inevitable⁸ that at least one of these challenges will reach the Supreme Court sooner or later. If you’re trying to handicap the likelihood of the Court overturning the law, it has to be noted⁹ that, historically, the Court defers¹⁰ to Congress unless it finds a law to be clearly unconstitutional. That said, the Court has overturned quite a few laws over the years, and there are serious arguments being made on both sides of the health care issue.
Why Might the Health Care Law Be Unconstitutional?
The most prominent lawsuit--filed by thirteen state attorneys general--argues that the legislation is simply beyond Congress’s constitutional powers. That argument focuses on the “individual mandate,” that is, the requirement that every US citizen and legal resident purchase health insurance or face a tax penalty. That penalty starts at $95 in 2014, ramping¹¹ up to $695 in 2016.
Article One of the Constitution delegates certain specific powers to Congress; these are sometimes referred to as the “enumerated¹² powers.” Also, the Tenth Amendment¹³ to the Constitution states that those powers not delegated to Congress are reserved to the States and the People. The attorneys general point out that health care isn’t one of the enumerated powers of Congress and, therefore, the power to regulate health care is reserved to the states under the Tenth Amendment.
Why Might the Health Care Law Be Constitutional?
The counter-argument is that the health care bill fits within Congress’s power to regulate “Commerce . . . among the several States” (Article I). That is known as Congress’s “commerce power,” and the Supreme Court has interpreted that power very broadly since the late 1930s. Generally speaking, the Court has upheld federal regulations as long as the activity being regulated will, in the aggregate¹⁴, have a substantial impact on interstate commerce.
In the famous case of Wickard v. Filburn (1942), the Supreme Court upheld the power of Congress to regulate an individual farmer’s cultivation¹⁵ of wheat on his own farm for consumption by his own family. If everyone engaged in such activity, the Court reasoned, it would have a substantial impact on interstate sales of wheat. If Congress can regulate something as small as that--one may ask--can’t they regulate something as big as health care?
Other Arguments Against Health Care
But wait.  Opponents of the law still have some arguments up their collective sleeve.  First, they point out that the market in question--the market for health insurance--isn’t an interstate market. There are barriers to purchasing health insurance across state lines. Therefore, even if health insurance qualifies as “commerce,” the Court might hold that it isn’t commerce “among the several States,” as the Constitution requires.
Secondly¹⁶, the individual mandate is a relatively¹⁷ novel form of regulation.  Strictly¹⁸ speaking, it doesn’t regulate any form of economic activity; rather, it regulates a form of inactivity--the failure of certain people to buy health insurance. Opponents of the law claim that there is no precedent¹⁹ for the federal government mandating²⁰ citizens to engage in a particular form of economic activity.
What About the Requirement for Car Insurance as a Mandate?
Supporters of the law point to the requirement that drivers purchase auto²¹ insurance as an example of an individual mandate. It’s a fair point, but it doesn’t really address the constitutional issue. That’s because car insurance laws are enacted²² by state legislatures.  Unlike the US Congress, state legislatures are not subject to the “enumerated powers” doctrine²³ in the US Constitution.
If you’ve been waiting for me to tell you which side is right, I’m sorry to disappoint you, but that’s way above my paygrade! Armies of lawyers will be filing briefs and motions for months – possibly years – to come and eventually, the High Court is sure to weigh in.  Stay tuned²⁴!
Thank you for reading Legal Lad’s Quick and Dirty Tips for a More Lawful²⁵ Life. You can send questions and comments to。。。。。。or call them in to the voicemail line at 206-202-4LAW. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this article only.

 

1 con   

n.反对的观点，反对者，反对票，肺病；vt.精读，学习，默记；adv.反对地，从反面；adj.欺诈的

参考例句：

• We must be fair and consider the reason pro and con.我们必须公平考虑赞成和反对的理由。
• The motion is adopted non con.因无人投反对票，协议被通过。

2 controversy   

n.争论，辩论，争吵

参考例句：

• That is a fact beyond controversy.那是一个无可争论的事实。
• We ran the risk of becoming the butt of every controversy.我们要冒使自己在所有的纷争中都成为众矢之的的风险。

3 mandate   

n.托管地；命令，指示

参考例句：

• The President had a clear mandate to end the war.总统得到明确的授权结束那场战争。
• The General Election gave him no such mandate.大选并未授予他这种权力。

4 pro   

n.赞成，赞成的意见，赞成者

参考例句：

• The two debating teams argued the question pro and con.辩论的两组从赞成与反对两方面辩这一问题。
• Are you pro or con nuclear disarmament?你是赞成还是反对核裁军？

5 affordable   

adj.支付得起的，不太昂贵的

参考例句：

• The rent for the four-roomed house is affordable.四居室房屋的房租付得起。
• There are few affordable apartments in big cities.在大城市中没有几所公寓是便宜的。

6 lawsuits   

n.诉讼( lawsuit的名词复数 )

参考例句：

• Lawsuits involving property rights and farming and grazing rights increased markedly. 涉及财产权，耕作与放牧权的诉讼案件显著地增加。 来自辞典例句
• I've lost and won more lawsuits than any man in England. 全英国的人算我官司打得最多，赢的也多，输的也多。 来自辞典例句

7 supreme   

adj.极度的，最重要的；至高的，最高的

参考例句：

• It was the supreme moment in his life.那是他一生中最重要的时刻。
• He handed up the indictment to the supreme court.他把起诉书送交最高法院。

8 inevitable   

adj.不可避免的，必然发生的

参考例句：

• Mary was wearing her inevitable large hat.玛丽戴着她总是戴的那顶大帽子。
• The defeat had inevitable consequences for British policy.战败对英国政策不可避免地产生了影响。

9 noted   

adj.著名的，知名的

参考例句：

• The local hotel is noted for its good table.当地的那家酒店以餐食精美而著称。
• Jim is noted for arriving late for work.吉姆上班迟到出了名。

10 defers   

v.拖延，延缓，推迟( defer的第三人称单数 )；服从某人的意愿，遵从

参考例句：

• She never defers to her parents' opinions. 她从来不听从父母的意见。 来自辞典例句
• Even in Iraq, America defers to the elected government. 即使在伊拉克，美国也要遵从他的民选政府。 来自互联网

11 ramping   

土堤斜坡( ramp的现在分词 )； 斜道； 斜路； （装车或上下飞机的）活动梯

参考例句：

• The children love ramping about in the garden. 孩子们喜欢在花园里追逐嬉戏，闹着玩。
• Have you ever seen a lion ramping around? 你看到过狮子暴跳吗？

12 enumerated   

v.列举，枚举，数( enumerate的过去式和过去分词 )

参考例句：

• A spokesperson enumerated the strikers' demands. 发言人列数罢工者的要求。 来自《简明英汉词典》
• He enumerated the capitals of the 50 states. 他列举了50个州的首府。 来自《现代汉英综合大词典》

13 amendment   

n.改正，修正，改善，修正案

参考例句：

• The amendment was rejected by 207 voters to 143.这项修正案以207票对143票被否决。
• The Opposition has tabled an amendment to the bill.反对党已经就该议案提交了一项修正条款。

14 aggregate   

adj.总计的，集合的；n.总数；v.合计；集合

参考例句：

• The football team had a low goal aggregate last season.这支足球队上个赛季的进球总数很少。
• The money collected will aggregate a thousand dollars.进帐总额将达一千美元。

15 cultivation   

n.耕作，培养，栽培（法），养成

参考例句：

• The cultivation in good taste is our main objective.培养高雅情趣是我们的主要目标。
• The land is not fertile enough to repay cultivation.这块土地不够肥沃，不值得耕种。

16 secondly   

adv.第二，其次

参考例句：

• Secondly,use your own head and present your point of view.第二，动脑筋提出自己的见解。
• Secondly it is necessary to define the applied load.其次，需要确定所作用的载荷。

17 relatively   

adv.比较...地，相对地

参考例句：

• The rabbit is a relatively recent introduction in Australia.兔子是相对较新引入澳大利亚的物种。
• The operation was relatively painless.手术相对来说不痛。

18 strictly   

adv.严厉地，严格地；严密地

参考例句：

• His doctor is dieting him strictly.他的医生严格规定他的饮食。
• The guests were seated strictly in order of precedence.客人严格按照地位高低就座。

19 precedent   

n.先例，前例；惯例；adj.在前的，在先的

参考例句：

• Is there a precedent for what you want me to do?你要我做的事有前例可援吗？
• This is a wonderful achievement without precedent in Chinese history.这是中国历史上亘古未有的奇绩。

20 mandating   

托管（mandate的现在分词形式）

参考例句：

• Current requirements mandating that committees keep minutes are too general. 目前对委员会要保持详细记录的指令性要求，还是太过一般化了。
• Mandating that workers who quit without permission forfeit a month's wages. 规定工人私自离岗将受到罚没一个月工资的处罚。

21 auto   

n.(=automobile)(口语)汽车

参考例句：

• Don't park your auto here.别把你的汽车停在这儿。
• The auto industry has brought many people to Detroit.汽车工业把许多人吸引到了底特律。

22 enacted   

制定（法律），通过（法案）( enact的过去式和过去分词 )

参考例句：

• legislation enacted by parliament 由议会通过的法律
• Outside in the little lobby another scene was begin enacted. 外面的小休息室里又是另一番景象。 来自英汉文学 - 嘉莉妹妹

23 doctrine   

n.教义；主义；学说

参考例句：

• He was impelled to proclaim his doctrine.他不得不宣扬他的教义。
• The council met to consider changes to doctrine.宗教议会开会考虑更改教义。

24 tuned   

adj.调谐的，已调谐的v.调音( tune的过去式和过去分词 )；调整；（给收音机、电视等）调谐；使协调

参考例句：

• The resort is tuned in to the tastes of young and old alike. 这个度假胜地适合各种口味，老少皆宜。
• The instruments should be tuned up before each performance. 每次演出开始前都应将乐器调好音。 来自《简明英汉词典》

25 lawful   

adj.法律许可的，守法的，合法的

参考例句：

• It is not lawful to park in front of a hydrant.在消火栓前停车是不合法的。
• We don't recognised him to be the lawful heir.我们不承认他为合法继承人。