A successful legal challenge of health care reform wouldn't just bring down the legislation signed into law by the president on Tuesday, but could topple Medicare and Social Security as well, according to a prominent lawyer.
Legal challenges to health care reform are focused on the requirement that starting in 2014, individuals must buy health insurance or pay a penalty for going without it. Simon Lazarus, public policy counsel for the National Senior Citizens Law Center, said on a conference call with reporters that a challenge of the constitutionality of the so-called "individual mandate" also applies to the constitutionality of longstanding programs such as Medicare, Medicaid, and Social Security.
"There are ways in which the the challenges to the validity of the mandate do implicate Medicare and Medicaid," said Lazarus, who has written a brief arguing for the constitutionality of health care reform. "The people who are challenging the constitutionality of the mandate are people who believe that Medicare and Social Security ought to be unconstitutional also. The arguments they're making would certainly call those programs into question.
"Essentially, Medicare is a program which requires people to pay rather substantial taxes ultimately to be in a position to receive benefits of health coverage when they're over 65," Lazarus continued. "This program is a tax-and-spend program as well as a regulatory program. In order to get to the point where you could declare the program unconstitutional, you'd have to involve 200 years of precedent under the spending clause and Congress's tax-and-spend powers.
"You couldn't really challenge this program without throwing some question over Medicare and Social Security."
Erwin Chemerinsky, a law professor at the University of California, disagreed. "If [health care reform] were invalidated, I don't think it would have any adverse effect with regard to Medicaid or Medicare," he said. "The Supreme Court has said Congress can create any spending program it believes would serve the general welfare. I think the only question is, can Congress tax those who haven't purchased health insurance? That's not an issue that would implicate Medicare or Medicaid."
Neither Chemerinsky nor Lazarus thought a legal challenge of health care reform had any chance of success.
"This whole campaign challenging the constitutionality of health care reform is just the latest chapter in a long pageant of conservative right-wing scare tactics designed to frighten people into thinking health care reform is a horrific change for America," said Lazarus. "It really is a natural heir to the 'death panels', a natural heir to the 'government takeover.' These lawsuits that are being filed now, if you take a look at them, frankly they're embarrassing from a legal standpoint. They're totally frivolous. I'm confident they'll be summarily dismissed even by conservative federal judges."