House Republicans Accidentally Accept The Constitutionality Of The Affordable Care Act

On Thursday, House Republicans stripped language from their own health care bill that could “undermine their argument that the Democrats’ 2010 healthcare law abused the Commerce Clause of the Constitution,” The Hill’s Pete Kasperowicz reports. That language, included in H.R. 5, a bill to repeal the Affordable Care Act’s Independent Payment Advisory Board (IPAB), read:

Congress finds that the health care and insurance industries are industries affecting interstate commerce and the health care liability litigation systems existing throughout the United States are activities that affect interstate commerce by contributing to the high costs of health care and premiums for health care liability insurance purchased by health care system providers.

The administration is deploying this very argument in defense of the Affordable Care Act at the Supreme Court next week, insisting that since health care costs “affect interstate commerce,” the Constitution’s commerce clause empowers Congress to regulate the industry and require everyone to purchase coverage in an effort to lower insurance premiums. As a result of the mandate — that is, if people must purchase insurance before they fall ill — Congress can require insurance companies to accept all applicants, regardless of their pre-existing conditions, and offer more affordable coverage to those who need it most.

H.R. 5 passed the House on Thursday, but even with the last minute change, the final version of the bill still includes language that resembles the administration’s claim that Congress can regulate the purchase of health care under the Constitution’s Commerce and Necessary and Proper clauses:


The constitutional authority upon which this title rests is the power of the Congress to provide for the general welfare, to regulate commerce, and to make all laws which shall be necessary and proper for carrying into execution Federal powers, as enumerated in section 8 of article I of the Constitution of the United States.

The bill specifically mentions “interstate commerce” in its definition of ‘health care lawsuit’: “The term ‘health care lawsuit’ means any health care liability claim concerning the provision of health care goods or services or any medical product affecting interstate commerce, or any health care liability action concerning the provision of health care goods or services or any medical product affecting interstate commerce,” it reads.