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Justice Department Files Response to Suit on Health Law's Constitutionality

By Jane Norman, CQ HealthBeat Associate Editor

May 12, 2010 -- The Justice Department says in its first response to a lawsuit challenging the constitutionality of the new health care law that opponents are "flatly wrong" to claim the government does not have the authority to require individuals to buy health insurance.

The department responded to a suit that was filed in U.S. District Court for the Eastern District of Michigan by the Thomas More Law Center, a national public interest law center with headquarters in Ann Arbor, Mich., that says its mission is to defend "America's Christian heritage and moral values."

On March 23, the same day President Obama signed the health care law, the center filed the suit on its own behalf and on that of four Michigan residents who do not have private health insurance.

It is separate from a suit in federal courts in Florida filed by attorneys general and governors from 20 states also challenging the new law (PL 111-148, PL 111-152). Other suits have been filed as well.

Named in the Michigan suit are Obama, Health and Human Services Secretary Kathleen Sebelius, Attorney General Eric H. Holder Jr. and Treasury Secretary Timothy F. Geithner.

Opponents of the law argue that Congress exceeded its constitutional authority in approving the law because it goes beyond regulation of interstate commerce and usurps powers reserved for states and people. The penalty provision essentially is a tax, it says. It also contends the new law forces citizens to fund abortions contrary to the free expression of religion in the First Amendment.

But Justice Department lawyers say that the center and the Michigan residents do not have standing to bring a challenge to the law because they filed the suit four years before the law goes into effect, have demonstrated no injury and "merely speculate" the law will harm them once in force.

"The health care industry operates in interstate commerce and there is a long-recognized federal interest in its regulation," adds the Justice Department. The new law "seeks to reduce the number of uninsured Americans and the escalating costs they impose on the health care system" and makes needed changes in insurance regulations, it says.

"Integral" to the bill is its requirement that all Americans, with some exceptions, either hold health insurance or pay a penalty, the suit says. Congress determined this requirement was essential and its absence would undercut federal regulation of the market because otherwise, individuals would wait until they were sick to buy insurance, the Justice Department says. Congress determined that spreading costs across a large pool of consumers would serve to reduce prices.

Despite those findings and the billions of dollars authorized by the health care law, "plaintiffs claim that this integral part of the act falls outside of both Congress' authority over interstate commerce and its power to tax and spend for the general welfare," Justice says. "These claims are flatly wrong."

However, the center says: "There is no enumerated power in the Constitution that permits the federal government to mandate that every American citizen purchase or obtain health care coverage or face a penalty."

The center's suit is being handled by Robert Muise, senior legal counsel, and private attorney David Yerushalmi. The response was submitted by department trial lawyers Ethan P. Davis and Jesse Z. Grauman and is also signed by Assistant Attorney General Tony West, Deputy Assistant Attorney General Ian Heath Gershengorn, U.S. Attorney Barbara McQuade and Sheila Lieber, deputy director of the civil division.

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