The Congressional Research Service Questions Health Law's Constitutionality


By Hadley Heath

The Congressional Research Service now joins the voices questioning the constitutionality of the health law.  In an October 15 report, CRS examines the two main arguments used by the federal government to defend the individual mandate.  The two defenses are 1) that the government has the power to regulate commerce under the Commerce Clause and 2) that the government can collect the penalty for the failure to purchase insurance because it is a tax (the government’s taxing power).  Read an article about the report on CNS News here.

The CRS is critical in its analysis, pointing out that:

“This is a novel issue: whether Congress can use its Commerce Clause authority to require a person to buy a good or a service and whether this type of required participation can be considered economic activity.” 

And on the matter of taxation power:

“As the tax is imposed conditionally and may be avoided by compliance with regulations set out in the statute, some might argue that it may also be accurately described as a penalty and, therefore, the taxing power alone might not provide Congress the constitutional authority to impose the requirement.”

Ultimately, the CRS stated clearly in this report that the constitutionality of the health law is “a challenging question.”  For those who have called the lawsuits filed against it “frivolous,” this should be a wake-up call.  There is nothing frivolous about defending the Constitution.


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