Public Affairs, 212-854-2650
New York, June 22, 2010
—Columbia Law School
Professors Gillian Metzger
and Trevor Morrison
have co-written a brief
supporting a motion by the federal government to dismiss a suit by Virginia that seeks to invalidate the health-care reform legislation signed by President Obama.
The professors, who wrote their brief with Yale law professor Jack Balkin
and were represented by Andrew Pincus at Mayer Brown, focus their argument on the provision in the landmark $940 billion bill that requires individuals to obtain health insurance by 2014 or pay an annual penalty. They contend the provision “falls well within” the power the Constitution grants to Congress to “lay and collect Taxes, Duties and Excises,” in addition to being a permissible exercise of Congress’s commerce power.
The brief notes that the Supreme Court has “upheld measures as valid exercises of the taxing power so long as they serve the general welfare, raise revenue and do not violate any independent constitutional prohibition.”
The professors argue that the provision easily meets these conditions and is also not a “direct tax” or capitation that would need to be apportioned among the states. The brief emphasizes “a tax is not any less a tax” because it has a regulatory purpose or effect.
Virginia sued the government shortly after the bill was passed in March and signed into law. It contends the requirement to buy insurance exceeds Congress’s powers under the Constitution. Virginia was also the first state to pass a law that made it illegal for a government to force individuals to buy health insurance.
Fourteen other states have sued the government under similar grounds. The government has sought to have Virginia’s suit dismissed in U.S. District Court in Richmond, arguing the penalty falls within the power of Congress’ power under the Interstate Commerce Clause and under the tax power. The professors agree.
“No one has a right to be free from taxation, and Congress’ decision to target individuals who decide to forego insurance is indisputably rational, given the impact of their decision and society as a whole,” according to the brief.
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