Tuesday, December 22, 2009

More on health care and constitutionality: the 6th hurdle

In previous posts (here and here), I discussed what I thought were the key obstacles to the survival of the health care reform now pending in congress. I suggested that there were 5 "hurdles" that the reform would have to clear before being implemented. I also suggested grounds on which the reform might be declared unconstitutional.

An essay by Richard Epstein (click here to read it: hat tip, Volokh Conspiracy) offers another reason why it might not pass constitutional muster (or, in the way I see it, why the Supreme Court might strike it down). If I understand the essay correctly--and I have only skimmed it--the reform bill might be a "regulatory taking." That is, if the regulations it imposes on health insurance providers is so onerous as to cause a severe loss of profits, then it might be deemed a "taking" of the insurers' property without due process of law and without "just compensation," a violation of the 5th amendment to the Constitution. My fear is that a majority of justices, even the so-called "liberal" justices, might be persuaded by this logic where they might be persuaded by the other constitutional concerns I've mentioned.

One can sure bet that the health care reform will be challenged in court if it passes. If it is, then this challenge is probably the most potentially fatal to the plan, and any court case will be a nail biter.

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