Speaker considers federal overreach
Virginia Solicitor General E. Duncan Getchell discussed the constitutional questions surrounding health care reform law on Wednesday.
By Noah Reichblum, The Dartmouth Staff
Published on Thursday, February 16, 2012
As supporters and critics of the 2010 Patient Protection and Affordable Care Act prepare their arguments for a pending Supreme Court case, Virginia Solicitor General E. Duncan Getchell discussed the constitutional questions surrounding the 2010 health care reform law on Wednesday in a lecture held in the Rockefeller Center.
Virginia was the first state to file a motion against the health care law under the claim that the individual mandate, which in effect requires citizens to purchase a health care policy or face a penalty, is an unconstitutional overreach of the federal government.
“At issue is whether the government has the power to impose that requirement,” Getchell said. “Congress is attempting to exercise a power it has not exercised in 200 years.”
Getchell said the argument for the mandate’s unconstitutionality is “doctrinally modest,” and the suggestion that the law is constitutional is “extravagant.” The power claimed by Congress in the bill is novel and unprecedented, he said.
“In terms of federal power, this is the case of the generation,” he said in an interview with The Dartmouth.
The Supreme Court case United States v. Morrison — which ruled that portions of the 1994 Violence Against Women Act exceeded Congress’ regulatory power under the Commerce Clause — addressed similar issues, he said.
Currently, 28 states have filed lawsuits against the federal government, with 25 filing a joint lawsuit with the state of Florida, and Virginia and Oklahoma filing individual suits. The Supreme Court will hear oral arguments regarding the former case, Florida v. Department of Health and Human Services, in March.
Instead of the usual one-hour allotment, over five hours have been granted to hear the case as a result of its importance, according to Rockefeller Center Associate Director Ronald Shaiko.
Getchell said that, to his knowledge, this is first time in American history that a clear majority of states has sued the federal government claiming it has exceeded its power,
A ruling in favor of the states would not greatly affect citizens, Getchell said.
“If the Supreme Court rules PPACA unconstitutional, it will have no effect that anybody will notice because the position against the constitutionality of ‘Obamacare’ is very modest,” Getchell said. “It doesn’t require the Court to reverse a single case or change any doctrine,”
Yet if all aspects of the bill are upheld, the decision will alter the scope of Congress’ power, according to Getchell.
“Having a power in Congress that has no principal limits fundamentally alters the relationship between the national government and the citizens,” he said.
A decision in the states’ favor could also give Republican political candidates momentum, according to Shaiko.
The Court is expected to announce its decision in late June, which coincides with national and local campaigns.
Getchell's lecture — part of the Brooks Family Lecture Series — was the first of two health care-related visits hosted by the Rockefeller Center. The Rockefeller Center has invited Neal Katyal '91, former acting U.S. Solicitor General, to provide the federal government position on the health care bill's constitutionality.
While Getchell was unable to visit Shaiko’s public policy class due to scheduling conflicts, he met with students over dinner in an event hosted by PoliTALK.
Tyler Kuhn ’14, PoliTALK’s discussion group leader, said he believes students sometimes focus more on the executive and legislative branch when examining the policy-making process.
“From the Rockefeller Center’s perspective, it’s important for students to understand that the judiciary branch has a role in public policy as well,” he said.
Emmanuel Kim ’15, who hopes to eventually enroll in law school, said he attended the lecture due to his interest in learning about the foundations of both arguments.
“I don’t think this is about health care,” he said. “This is bigger than that. It pertains to every aspect of our lives potentially.”
Bah – teabaggers. Just because it is an important case does not mean it will be a tough one. Q: Is health insurance an article of interstate commerce? A: Yes. The headline should put “overreach” in quotation marks. Did Mr. Getchall mention that Virginia’s motion is NOT one of the ones that the Supreme Court will be hearing?
By Anonymous on Feb 16 | 4:42 am
Did Getchall talk at all about the inconvenient truth that the individual mandate was first advocated by some of the most conservative of Republicans before they were against it?
It was first advocated by the ultra-conservative thinktank, the Heritage Foundation. Then it was adopted by the Republican party for their counterproposal to what was derisively called Hillarycare. (And of course, no fixes to healthcare were made in the end thanks to Republican obstructionism.) Then it was adopted by Mitt Romney in Massachusetts. Only once President Obama incorporated into the Affordable Health Care Act did Republicans join together in their typical lockstep groupmind and start saying “You will be assimila–” er, that is, start saying that the Affordable Health Care Act was a shocking overstep by a liberal marxist President. It was a Republican idea! And the ultra-conservative wing of the party at that!
And as a side note, as long as the Attorney General of the State of Virgnia was at Dartmouth, did anyone ask him about the legislature that has passed both the Virginia House and Senate, and that the Governor has said he will sign, that requires women seeking an abortion first be subjected to a transvaginal ultrasound, a procedure that involves inserting equipment into the vagina and a procedure that is not medically necessary?
Because perhaps I’m missing something, but I don’t understand how it is a horrible imposition for the federal government to require everyone purchase health insurance, but perfectly okay for the state to require women seeking a legal medical procedure to needlessly have items inserted into her vagina without her consent and without her doctor thinking it is needed. Which to you seems the greater violation of liberties?
By Anon ‘05 on Feb 16 | 9:06 am
When the confederation of states decided they wanted a closer union, they were intent on drafting a constitution giving the Federal Government limited power — only the power needed to take care of matters that the States or the people could not take care of by themselves. The Federal Government has to take care of relations with foreign nations, and to defend us against foreign enemies. No one at the time the Constution was being considered viewed that the Federal Government was needed to provide health care. Insurance plans for health care are fine for those who find it beneficial but the Federal Government is overreaching beyond its Constitutional authority when it tells a citizen who doesn’t want insurance, or doesn’t want insurance run by the government, that he must buy government health insurance.
By Wallace Edward Brand on Feb 16 | 9:18 am
“Bah-teabaggers.” “Q: Is health insurance an article of interstate commerce. Yes.” This is know-nothing BS to the infinite power. Any person or entity who is not engaging in commerce, interstate or otherwise, cannot be said to come under the interstate commerce constitutional formulation, which is itself a false application of the Constitution. This means that Mr. or MS. “Bah-teabaggers” supports the American people being forced to buy health insurance in order for them to be regulated afterward. Q: Does the Constitution allow for the federal government to force the people to engage in interstate or any other commerce? A: No. It does not matter which state’s motion is the one the Supreme Court will be hearing.
By Anonymous In General on Feb 16 | 2:15 pm
My Dearest Anonymous and Anon ‘o5: Please acquaint yourselves with some of our work. Does this ring a bell: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
By Messrs. Madison, Jefferson.Morris et. al. j on Feb 16 | 2:48 pm
My dearest person spouting the names of framers as if he understands their work, please acquant yourself with Wickard v. Filburn and the broad definition of interstate commerce that the Supreme Court adopted in 1942. And take a look at Article 1, Section 8 of the Constitution, putting regulating interstate commerce in the hands of Congress.
By Anon ‘05 on Feb 16 | 4:17 pm
You’ve just got the tiniest problem ‘05. Forcing commerce to occur is not “Putting the regulation of interstate commerce in the hands of Congress.” In even the broadest interpretation of the unconstitutional misuse of the commerce clause, there is no case where a party has been forced into commerce in order for the government to claim the power to regulate it. You either know nothing of the Constitution or are deep in the tank for unlimited government power. Tell me this, if the federal government can enforce the purchase of a service, as you state as a given, what can’t they force us to do? If you had a real interest in the Constitution, which you don’t, you would read Georgetown University Law Center Carmack Waterhouse Professor of Legal Theory Randy Barnett’s book, “Restoring the Lost Constitution: The Presumption of Liberty” Princeton University Press, 2004. When you finish it your days of “Spouting” and drooling will end.
By Un Anon ‘05 on Feb 16 | 10:38 pm
Regulating that which does not exist is either magic or a lie. I’ll go with lie. Pretty cool, huh 05'? Get out your dictionary and read the entry under lie, if you can spell it.
By Anonymous on Feb 16 | 10:55 pm
If the supreme court rules against this law does it mean I shouldn’t pay federal income tax? Or sign up for a draft number? Or obtain a social security number? Or refuse to obey federal laws? I guess I won’t be needing that CDL license after all! Crazies! It sure beats Ryan care! (Or maybe we should call it Ryan Care Not?) It all comes down to the FICA thing. Didn’t that happen over seventy years ago? Here’s my plan. Make social security/Medicare/Medicaid optional. If you opt out then all your contributions shall be returned to you but no getting back in ever and no future benefits. Any takers? Just a few well to doers but not most of us. Most of us will rely on that ‘federal mandated program because it is something that insures that we take care of those who in other third world countries would be cast off into the streets. I don’t believe that that is who we really are. Do you?
By Richard on Feb 17 | 7:36 pm
If the Supreme Court doesn’t rule against this law, you can kiss your country goodbye. The ruling has nothing to do with whether or not you pay your income tax, which is also unconstitutional, but if you don’t want to pay it don’t, I really don’t give a “darn” one way or another. Richard needs to get a grip on himself as if not having your life taken over by the federal government is some sort of crazy idea, when it is the reverse that is true. You can’t insure that anything will be taken care of when it is taken away from you to decide one way or another. There IS NO MONEY IN SOCIAL Security and by Supreme Court ruling the federal government is not obligated to pay anyone in the “system.” The federal government can do as it pleases with that money and it has pleased them to spend all of it plus $16 trillion more on other things. Others in third world countries are in third world countries because their governments run too many things if not everything and they run them corruptly, just like ours does. If you think people are out on the street because governments around the world control too little you need some educational aids. “Who we really are” is not “we” or even the “Royal We” it is each of us individually added up, this group “we” stuff is a whole lot of baloney.
By Bill on Feb 19 | 6:00 pm