In late 2009, Sen. Max Baucus made the case that the individual mandate at the heart of the health-care reform legislation was constitutional. "Most legal scholars who have considered the question," he said, "argue forcefully that the requirement is within Congress's power to regulate interstate commerce."
Baucus, the centrist Democrat who presided over the legislation, quoted constitutional scholar Erwin Chemerinsky, who said that those arguing otherwise don't have "the slightest merit from a constitutional perspective." Chemerinsky, Baucus said, compared health-care reform to Gonzales v. Raich, in which the U.S. Supreme Court held that the commerce clause extends to the cultivation and possession of small amounts of marijuana for personal use. As Chemerinsky would later write, "If Congress's commerce clause powers allow it to prevent Angela Raich from growing a small amount of marijuana to offset the ill effects of chemotherapy, then surely it has the authority to regulate a $2 trillion industry."
Baucus and Chemerinsky appear to have been more convincing than Solicitor Gen. Donald Verrilli Jr., who last week made oral arguments before the Supreme Court in defense of the Affordable Care Act. One legal analyst called Verrilli's performance "a train wreck for the Obama administration." The justices signaled that the law is in jeopardy. We won't know its fate until June.
Meanwhile, in Montana, we're finally beginning to see the benefits of "Obamacare." It's funding a new health-care clinic next to the Westside's Lowell School. The Montana Health Cooperative recently received a $58 million start-up grant to begin operations. Montana seniors have saved millions on prescription drugs. Thousands of young adults have gained coverage.
Twenty-six state attorneys general challenged the Affordable Care Act. Colorado Attorney General John Suthers was among them. Last week he said on National Public Radio that while he believes the mandate is unconstitutional, a single-payer system would be constitutionalif Congress had the "political will" to pass it. Ironically, it was Baucus who lacked the will. He gave single-payer advocates short shrift, because, he said, "single-payer is not going to get to first base" in Congress. Two years later, with the law in limbo, we're still wondering whether Baucus helped or hindered reform.