On the eve of Supreme Court arguments challenging the Affordable Care Act (ACA), a legal expert and faculty member of the Johns Hopkins Berman Institute of Bioethics has vigorously defended the constitutionality of its most controversial provision, the “individual mandate” to purchase health insurance by 2014 or face a monetary penalty.

In an op-ed published today in the Baltimore Sun, Leslie Meltzer Henry, M.Sc., J.D., and, Maxwell L. Stearns, professor of at the University of Maryland Carey School of Law declare that “The ACA is consistent with long-standing precedent allowing Congress to tackle regulatory problems affecting commerce that states are ill-suited to solve on their own.” Henry is also an assistant professor of law at the Carey School.

The real issue, the authors write, is not that the mandate violates the Commerce Clause by allowing unfettered federal regulation. Rather, striking down the individual mandate would prevent Congress’ crucial authority in matters with a ‘substantial economic effect on commerce,’ which the authors trace to the Court’s 1942 decision in Wickard v. Filburn.

States are not capable of regulating the health insurance market on their own, the authors argue, because health insurance companies can always pull out of a state with unfavorable laws or deny coverage to high-risk applicants. “Arguments that sustaining the individual mandate would give Congress limitless power ring hollow,” the authors write.

“Striking down the individual mandate would introduce a new and deeply problematic chapter in the history of the Commerce Clause. For the first time since the New Deal, Congress would no longer hold a vital power of national concern, namely, the authority to regulate all economic subject matter substantially affecting commerce,” the authors conclude.

Henry will speak on the individual mandate at a seminar at the Johns Hopkins University on Monday, March 26, as the Supreme Court begins hearing oral arguments on the case. The seminar will be held from 12:15 – 1:30 PM at the Bloomberg School of Public Health, 615 N. Wolfe Street, Room W3008, Baltimore, MD 21205.

Stearns and Henry expand their arguments in their paper “Commerce Games and the Individual Mandate,” in the April 2012 Georgetown Law Journal.

Source: Johns Hopkins Medicine