Mr. Inskeep spoke with Walter Dellinger and Paul Clement -- the first was Solictor-General under former President Bill Clinton and the second was Solictor-General under former-President George H.W. Bush. Here is an excerpt (the segment has audio and transcript):
Steve Inskeep: Walter Dellinger, why dont you start? What does the Commerce Clause say and how does it apply to this law?
Prof. DELLINGER: It says Congress shall have the power to regulate commerce among the several states. And it is indisputably the case, no one is disputing, that Congress can regulate the national health insurance market and can do so, for example, by forbidding insurance companies from denying coverage based upon preexisting conditions - of course, your child is born with a defect, Congress has done that.
But Congress also knew, to make that workable, you had to provide some economic incentive for people to buy insurance. If you couldn't be denied coverage, you could wait and by your insurance on the way to the hospital...
INSKEEP: Sure. Sure.
Prof. DELLINGER: ...on your cell phone.
Prof. DELLINGER: So therefore, Congress thought that was necessary, to make this workable, and that's why Congress enacted it.
INSKEEP: So we've got the clause of the Constitution. It's fairly short, but it's been a huge its application because it gives Congress the right to regulate all sorts of businesses.
Paul Clement, what is the argument that it would not give Congress the power to make this particular regulation in health care?
Mr. CLEMENT: Well, I think that the problem that government always has in defending challenges under the Commerce Clause is telling the courts what's the limiting principle. Because, as Walter says, the Constitution enumerates certain powers of Congress. And of all of those powers, probably the broadest power is the Commerce Clause power - at least as it has been interpreted by the Supreme Court.
But the Supreme Court never wants to have the government say that the Commerce Clause gives the federal government plenary power to regulate anything it wants.If that had been all, Mr. Inskeep's segment still would have offered more than Ari Shapiro's yesterday.
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