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Thursday, February 3, 2011

The U.S. Senate on Health Insurance Reform: On the Applicability of the Bundesrat and the E.U.'s Council of Ministers

A second federal judge ruled at the end of January, 2011 that it is unconstitutional for Congress under the interstate commerce clause of the U.S. Constitution to enact a health care law requiring Americans to purchase health insurance. Unlike the Federal judge in Virginia who had ruled against the law the month before, Judge Roger Vinson of Federal District Court in Pensacola, Fla., concluded that the insurance requirement was so “inextricably bound” to other provisions of the Affordable Care Act that its unconstitutionality required the invalidation of the entire law.  Such an invalidation would of course be in the interest of the health-insurance industry lobby; the managers of health insurance companies are opposed to providing expanded coverage to the uninsured without the mandated expanded pool that would spread out the risk. One might wonder whether the lobby has any muscle with the Federal courts.  Nonetheless, I want to raise another point that may have been missed from all the tussle over the jurisprudence. Specifically, 26 states were parties to the legal challenge in Pensacola. That is to say, more than half of the state governments were opposed to the Affordable Care Act.  It is notable, therefore, that the U.S. Senate, which represents the States and was intended to give them a direct agency in the general (or federal) government, passed the Act by 60 votes in favor.  

The full essay is at Essays on Two Federal Empires.