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Health Care, Commerce and Kevin Bacon

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While some may debate whether every American should have access to health care, there is no debate on whether someone should be able to file a lawsuit against our new national health care legislation.

Our story begins with the passage of the Patient Protection and Affordable Health Care for America Act (PPACA), signed into law by President Obama on March 23, 2010. According to the White House website, the PPACA's mission is to, "hold insurance companies accountable, lower health care costs, guarantee more choice, and enhance the quality of care for all Americans ." And, while that sounds pretty simple, 20 State Attorney Generals either disagree or are at least trying to make the law's passage anything but simple.

Less than an hour after the PPACA became law, the Florida attorney general sued various arms of the Federal government arguing that the PPACA should be repealed on constitutional grounds. Over the following two weeks, attorney generals from Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Pennsylvania, South Carolina, South Dakota, Texas, Utah and Washington all joined the lawsuit. Not to be left out (or lumped in), Virginia filed its own lawsuit and is assisting the larger suit.

The Commerce Clause

This "Coalition of the Health Care Unwilling" is suing on a number of constitutional grounds, but their anchor argument is that the PPACA violates the Constitution's Commerce Clause by requiring every American to purchase health insurance or face a penalty. Under the new law, this penalty will increase gradually until 2016, when it will max at $2,085 per family, and it will then grow with inflation thereafter.

The Commerce Clause is not a widely known or understood part of our constitutional framework, but here is a quick primer:

The Commerce Clause gives the Federal government the power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Given that we have largely wiped out the Indian Tribes and few debate that our Federal government should take the lead on world commerce, most modern Commerce Clause disputes arise over the question of whether the Feds are taking action (or prohibiting action) to protect commerce "among the several states."

In the PPACA lawsuit, the Federal government has taken action by telling state citizens to purchase health insurance. The AGs are wondering how in the world not purchasing insurance in their state has an impact on commerce between their state and any other.

Can Not Acting Impact Commerce?

I am no constitutional scholar; but it appears the state AGs have a couple of problems: First, "acts of omission" -- where someone acts by not acting -- are well established in the legal field. For example, if you sat back and watched someone drown when you could have saved them, everyone would agree that you have acted by not acting and should probably be punished for it.

Second, the Commerce Clause over the years has greatly expanded from the limited language drafted by James Madison 223 years ago. I think of the Commerce Clause as the Constitutional equivalent of the trivia game "Six Degrees of Kevin Bacon." Even if you are not a Footloose fan (everybody cut, everybody cut . . .), you have probably heard of the game where someone names an actor and another person has to link him or her to Kevin Bacon within six steps using the actor's various film roles.

As for the Commerce Clause version of SDKB (hey, if a health care law has a fancy acronym, then so should any game involving Kevin Bacon), it seems that depending on how the political winds are blowing, a court could come up with a way to link just about any activity to interstate commerce in six steps or less. For example, in a similar time (the depression) involving similarly sweeping legislation (the New Deal's Agricultural Adjustment Act), the Supreme Court held that, if you grow wheat on your own land and even for your own consumption, your wheat farming activity could affect interstate commerce by affecting the demand and thus price for wheat.

So, how the AG's Commerce Clause arguments fare depends on whether the assigned federal judge in Florida leans more towards James Madison or Kevin Bacon. Whether the judge supports the PPACA, might have some bearing -- just a wee bit -- on the case's outcome as well (should you doubt this, think Bush v. Gore). All of this goes for appellate judges too, as any decision in this case will surely be appealed, probably all the way up to the Supreme Court.

An Odd (but Necessary) Process

Running a company that rates both doctors and lawyers, I am often intrigued when I see both professions intersect. The PPACA is a cornucopia in this regard. Not only is it a regulatory beast, but now its short-term fate is held in the hands of somewhere between one and 13 judges. It is an odd practical outcome in a system designed to let the majority rule.

Still, it is a small price to pay in order to preserve our three-branch-system of checks and balances. I just wish this check didn't smell so much like a continuation of the road-kill-quality rancor that has permeated national politics for the last ten years (and our most recent elections).

Maybe to disagree -- sometimes vehemently -- whether it be in Congress, the courts or our communities is the only crucible ensuring more-inclusive, better decisions in the long run. Only time will tell. In the meantime, I'm just happy that our vigorous national health care debate is allowing us to talk about Kevin Bacon.

Avvo is a free resource that rates and profiles 90% of all doctors and lawyers in the U.S. Avvo also has health and legal Q&A forums where anyone can ask health and legal questions -- anonymously if need be -- and certified doctors and lawyers answer them. Unfortunately, few doctors or lawyers can answer questions about Kevin Bacon.

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