Constitutional expert says new health reform law should stand up to legal court challenges

The newly signed health care reform law should stand up well to legal court challenges, says constitutional expert and political scientist Mark Graber of the University of Maryland. Graber describes the measure as "constitutionally mainstream."

Here are more of Graber's thoughts.

The new Affordable Health Care for America Act is politically innovative, but constitutionally mainstream. Much debate has and will take place over the merits of requiring some individuals to purchase health care and of requiring insurance companies to enroll most Americans. While these policy questions are genuinely difficult, the constitutional issues are not. The legislation President Obama signed on Tuesday is as constitutional as such mainstays of the New Deal and Great Society as the Social Security Act, the Wagner Act and the Civil Rights Act of 1964.

For the past 70 years, a constitutional consensus has existed that the federal government may regulate all commercial activity that has an effect on interstate commerce, no matter where that commercial activity takes place. Health providers and insurance are two of the largest commercial activities in the United States. That Congress can regulate such activities is obviously inherent in the federal power to regulate interstate commerce.

When regulating interstate commerce, Congress has the constitutional power to regulate private activities that, standing alone, might appear to have no relationship to a national market. In the 1942 case, WICKARD V. FILBURN, the Supreme Court ruled that Congress could prevent a farmer from using wheat grown on his farm to feed his animals on the ground that home-grown wheat interferes with the interstate grain market.

Congress may also regulate interstate commerce for any reason. The Civil Rights Act forbade racial discrimination by any business engaged in interstate commerce.

The most politically explosive aspects of health care reform are no more controversial constitutionally than legislation unanimously upheld by the Supreme Court in the past. If Congress has the power to require persons with farm animals to feed them with wheat purchased at the market place, then Congress can require all persons to purchase health insurance.

Given that the failure to purchase health insurance may impose increased costs on the general public (which often must pay for health services when insurance is unavailable), the federal government has the power to make sure individuals do not become a burden on the public.

Congress may, of course, pass stupid acts. That is what elections are for. Republicans claim the Democrats have passed a stupid act. That is what the elections of 2010 and 2012 are for. The crucial point is that nothing in the health care legislation is at all different from a constitutional perspective than the other features of the contemporary welfare state. Whether Americans like that state is a matter best determined by voting, not by litigation.

See online for other University of Maryland experts on health care reform:>