Observer: How does your experience and education give you a better understanding for the health care debate?

William Treanor: I began teaching at Fordham Law in 1991 (and became Dean of the Law School in 2002) and among the subjects I teach is constitutional law. I have a law degree and I also did graduate work in American history, focusing on the original understanding of the Constitution.  In addition to my academic background, I served as Deputy Assistant Attorney General in the United States Department of Justice’s Office of Legal Counsel from 1998 until 2001. The Office of Legal Counsel is responsible for answering constitutional law questions for the White House and the Attorney General. Among other things, the Office is charged with reviewing proposed statutes to determine whether they are constitutional.  So, I have a significant background in looking at the constitutionality of proposed legislation.

Observer: Where does your expertise and the debate over health care reform intersect?

WT: People have made the argument that  the health care legislation that Congress has been considering, which would require people to buy health insurance, is unconstitutional. They make two arguments against this requirement (which is called an “individual mandate”). I do not think either challenge is very strong.

Observer: Where do the arguments fail?

WT: The first argument is that the individual mandate violates the Takings Clause of the Fifth Amendment of the Bill of Rights.  The Takings Clause says that, if the government takes your property, it has to pay you for it.  People who challenge the health care legislation have argued that requiring people to pay for health care insurance takes their property: their money is being taken to give them something they would not choose to pay for.  But this argument is a weak one.  The Takings Clause provides that, if the government takes your property, it has to provide you with compensation.  Here, the health insurance is the compensation. This is not a case in which people’s property is being taken without their getting something of equal value in return. They are required to pay, but they would receive health insurance in return.  The Takings Clause, which prohibits uncompensated takings, does not apply to a situation where you are giving something of equivalent value.

The other argument that people have made is that Congress simply does not have the power under the Constitution to pass health care legislation.  The response to this challenge is that the Constitution gives Congress the power to regulate interstate commerce. When people do not have health insurance, that affects interstate commerce because it drives up the cost of insurance for people who do have insurance (and the insurance industry is clearly part of interstate commerce).  Because Congress has the power to regulate interstate commerce, it has the power to require people to buy insurance.

Observer: Where does the debate go from here?

WT: I can’t predict whether Congress will eventually enact health care legislation.  But I don’t see constitutional problems with the legislation it has been considering.