terça-feira, 8 de fevereiro de 2011

Tribe e o plano de saúde de Obama

New York Times 8 de fevereiro de 2011 É uma resposta de Tribe a respeito das duas decisões de juizes federais americanos considerando inconstitucional o plano de saúde de Obama. Tribe confia que a Corte Suprema não decidirá de forma "partisan", nenhum homem é uma ilha! afirma o constitucionalista americano (enviado pelo mestrando em direito da ufrj Vinicius Marinho)

On Health Care, Justice Will Prevail
THE lawsuits challenging the individual mandate in the health care law, including
one in which a federal district judge last week called the law unconstitutional,
will ultimately be resolved by the Supreme Court, and pundits are already making
bets on how the justices will vote.

But the predictions of a partisan 5-4 split rest on a misunderstanding of the court
and the Constitution. The constitutionality of the health care law is not one of
those novel, one-off issues, like the outcome of the 2000 presidential election,
that have at times created the impression of Supreme Court justices as political
actors rather than legal analysts.
Since the New Deal, the court has consistently held that Congress has broad
constitutional power to regulate interstate commerce. This includes authority over
not just goods moving across state lines, but also the economic choices of
individuals within states that have significant effects on interstate markets. By
that standard, this law’s constitutionality is open and shut. Does anyone doubt that
the multitrillion-dollar health insurance industry is an interstate market that
Congress has the power to regulate?
Many new provisions in the law, like the ban on discrimination based on pre-existing
conditions, are also undeniably permissible. But they would be undermined if healthy
or risk-prone individuals could opt out of insurance, which could lead to
unacceptably high premiums for those remaining in the pool. For the system to work,
all individuals — healthy and sick, risk-prone and risk-averse — must participate to
the extent of their economic ability.
In this regard, the health care law is little different from Social Security. The
court unanimously recognized in 1982 that it would be “difficult, if not impossible”
to maintain the financial soundness of a Social Security system from which people
could opt out. The same analysis holds here: by restricting certain economic choices
of individuals, we ensure the vitality of a regulatory regime clearly within
Congress’s power to establish.
The justices aren’t likely to be misled by the reasoning that prompted two of the
four federal courts that have ruled on this legislation to invalidate it on the
theory that Congress is entitled to regulate only economic “activity,” not
“inactivity,” like the decision not to purchase insurance. This distinction is
illusory. Individuals who don’t purchase insurance they can afford have made a
choice to take a free ride on the health care system. They know that if they need
emergency-room care that they can’t pay for, the public will pick up the tab. This
conscious choice carries serious economic consequences for the national health care
market, which makes it a proper subject for federal regulation.
Even if the interstate commerce clause did not suffice to uphold mandatory
insurance, the even broader power of Congress to impose taxes would surely do so.
After all, the individual mandate is enforced through taxation, even if supporters
have been reluctant to point that out.
Given the clear case for the law’s constitutionality, it’s distressing that many
assume its fate will be decided by a partisan, closely divided Supreme Court.
Justice Antonin Scalia, whom some count as a certain vote against the law, upheld in
2005 Congress’s power to punish those growing marijuana for their own medical use; a
ban on homegrown marijuana, he reasoned, might be deemed “necessary and proper” to
effectively enforce broader federal regulation of nationwide drug markets. To
imagine Justice Scalia would abandon that fundamental understanding of the
Constitution’s necessary and proper clause because he was appointed by a Republican
president is to insult both his intellect and his integrity.
Justice Anthony Kennedy, whom many unfairly caricature as the “swing vote,” deserves
better as well. Yes, his opinion in the 5-4 decision invalidating the federal ban on
possession of guns near schools is frequently cited by opponents of the health care
law. But that decision in 1995 drew a bright line between commercial choices, all of
which Congress has presumptive power to regulate, and conduct like gun possession
that is not in itself “commercial” or “economic,” however likely it might be to set
off a cascade of economic effects. The decision about how to pay for health care is
a quintessentially commercial choice in itself, not merely a decision that might
have economic consequences.
Only a crude prediction that justices will vote based on politics rather than
principle would lead anybody to imagine that Chief Justice John Roberts or Justice
Samuel Alito would agree with the judges in Florida and Virginia who have ruled
against the health care law. Those judges made the confused assertion that what is
at stake here is a matter of personal liberty — the right not to purchase what one
wishes not to purchase — rather than the reach of national legislative power in a
world where no man is an island.
It would be asking a lot to expect conservative jurists to smuggle into the commerce
clause an unenumerated federal “right” to opt out of the social contract. If Justice
Clarence Thomas can be counted a nearly sure vote against the health care law, the
only reason is that he alone has publicly and repeatedly stressed his principled
disagreement with the whole line of post-1937 cases that interpret Congress’s
commerce power broadly.
There is every reason to believe that a strong, nonpartisan majority of justices
will do their constitutional duty, set aside how they might have voted had they been
members of Congress and treat this constitutional challenge for what it is — a
political objection in legal garb.

Laurence H. Tribe, a professor at Harvard Law School, is the author of “The
Invisible Constitution.”

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