MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, Wikileaks revelations about countries that are off the radar screen. But first, you have no doubt heard by now, yesterday a federal judge in Virginia declared a portion of Congress' recent Healthcare Reform Act invalid. The judicial decision said Congress exceeded its powers and violated the constitution's commerce clause by mandating that all Americans buy health insurance or face a penalty. Lots of political excitement and prognosticating greeted the ruling, but very little time was spent explaining what happened and why.

MR. KOJO NNAMDIWe got to wondering, what exactly is the commerce clause? What's the definite next legal step in this drama and will it really end up at the Supreme Court? We decided to invite a constitutional law expert to explain. Stephen Vladeck is back. He's a professor of constitutional law and federal jurisdiction at American University's Washington College of Law. He joins us by telephone. Stephen, thank you for joining us.

PROFESSOR STEPHEN VLADECKThanks, Kojo, good to be here.

NNAMDIWhile most of us non-lawyers do not recognize the phrase commerce clause, we do recognize some more familiar terms, state's rights and federalism. How do these terms apply in this case?

VLADECKWell, I think -- I mean, that's the central constitutional question. The commerce clause is one of Congress' expressly enumerated powers in the constitution and I daresay it's one of Congress' most important powers. Most of the laws the federal government passes that actually affect us on an everyday basis are passed pursuant to the commerce clause because the Supreme Court has historically said that Congress can pass any law that is about activity that affects or substantially affects inter-state commerce.

VLADECKSo Congress imposes a federal minimum wage through the commerce clause. Congress imposes workplace discrimination laws through the commerce clause. The question here is whether imposing this kind of healthcare requirement, the health insurance requirement, is a bridge too far.

NNAMDIWhen you say whether or not it is a bridge too far, how specifically does the commerce clause apply or not apply in the case of each American, regardless of what state we happen to be living in, being required to purchase health insurance?

VLADECKWell, I think the question is how does this match up with prior cases? And, you know, one of the most famous commerce clause cases actually dates back to World War II and it was the case about a farmer on a sort of small farm in the Midwest who was growing wheat simply for his own purposes. And the question was whether he was bound to follow a quota that commerce had imposed on all wheat growers nationwide.

VLADECKAnd the Supreme Court unanimously said, yes, that by growing wheat above the quota, even though it was for his own personal use, this farmer, Roscoe C. Filburn, was affecting the market. So since the 1940s, the Supreme Court has taken the view that Congress is allowed to aggregate individual activity. And if that activity in the aggregate affects inter-state commerce, Congress can regulate it. That's the central argument behind the constitutionality of the healthcare bill.

NNAMDIIn other words, if people in one state of the union, say Virginia, are permitted not to buy health insurance that it will cause an unfair burden on citizens in other states who are, who will then have to make up for those people who don't have health insurance when they do, in fact, seek healthcare.

VLADECKWell, it -- yeah, and it will put a burden even on those in Virginia.

NNAMDIYes, correct.

VLADECKI think the idea behind the bill is that we all consume healthcare at some point in our lives, whether we would like to or not, and so we should all either have insurance or pay some kind of penalty for not having insurance that will go toward, you know, the fund that is used to pay for that pool. Congress has done this before in other contexts.

VLADECKThis is the basic principle behind our social security system. It's the basic principle behind the Medicare and Medicaid programs. I think what's different now is instead of being targeted at a particular subset of the population, now the individual mandate is targeted at everybody.

NNAMDIYou can join this conversation by calling 800-433-8850 with your questions or comments about the ruling by a federal judge in Virginia yesterday declaring a portion of the recent Healthcare Reform Act invalid. You can also go to our website, kojoshow.org, or send us an e-mail to kojo@wamu.org We're talking with Stephen Vladeck. He's a professor of constitutional law and federal jurisdiction at American University's Washington College of Law. Why can the states do something that the federal government cannot?

VLADECKWell, Kojo, it's a great question. I mean, I think the reality is that going back to the forefathers of the country, they who wrote our constitution were careful to separate between the general, what we call the police power of the states, the power to basically enact any right or regulation that is reasonable with the very limited powers of the federal government. The idea was that the federal government would only have that power that the constitution specifically conferred upon it as opposed to the states, which could do basically anything that wasn't irrational or arbitrary or in violation of individual rights.

VLADECKThat principle hasn't gone away. I think the reality is just that, over time, commerce has come to mean something much more expansive and much more personal than it meant in 1787.

NNAMDIHere is Jim in Bethesda, Maryland, Jim you're on the air. Go ahead, please.

JIMHi, I have two questions. One is, if it's really incorrect, impinging the citizen's rights to collect money for healthcare services, I wonder if it's also incorrect to take money for social security and the services provided under that? And secondly, is this really smart? The Republicans who have been fighting -- it's conservatives who have been fighting it seems to think that this stuff will get paid for from nothing if this money is not collected. And if this is the only portion of the bill that's removed, only portion of the law that's removed, then this country is going to face a relatively large bill for these expenses anyway and that's going to come from something else and it will have to be funded. Thank you.

NNAMDIThat's the reason why the administration is making the argument it is making under the commerce clause, is it not, Stephen Vladeck?

VLADECKThat it is. And I think it's important to distinguish between two different kinds of legal claims. I mean, Jim was referring to, you know, citizens' rights. The claim here, the challenge to the bill is not based on the idea that it is violating the rights of individual Americans, rather the challenge turns wholly on the notion that this is something that only the states can do and not the federal government.

VLADECKI think there's no question that if the Commonwealth of Virginia, of the State of Maryland chose to enact a bill just like what Congress did, it would be upheld. Indeed, we've already seen that in Massachusetts and a few other states. So this is really only a question about whether the federal government can act when the states clearly can.

VLADECKAs for the second part, you know, with regard to who will pay, this is getting a bit into the weeds, but I think one of the real issues is if the individual mandate is struck down, you know, if Judge Hudson's decision from yesterday is upheld, the rest of the bill is still out there. And I think, you know, the caller is exactly right that that would create a huge problem where there's an enormous pool of folks who will need their medical services paid for, but without the individual mandate, there will be no pool of money from which to pay those costs. We clearly face a crisis when it comes to spending in the context of healthcare and I think this was Congress' attempt to try to abate that crisis.

NNAMDIYou expect this case to reach the Supreme Court. With the current court's makeup, what do you expect to happen in this case?

VLADECKYou know, Kojo, that's a great question. I mean, the next step, first, is for this case and several others that are pending to go to the courts of appeals. I think it's quite possible that this decision will be reversed by the Fourth Circuit, the appeals court that sits in Richmond. But I also think that it's equally possible that the Supreme Court will eventually have the final say. You know, even if there's no split among the lower courts, this is a significant issue. It's one on which I'm sure the court is very closely divided. And, you know, to be fair, this court has hardly been shy about wading into the middle of such a fray of national disputes in the last 10 to 15 years.

NNAMDIBut we have four new judges on this court who I suspect have not a great deal of experience with commerce clause issues.

VLADECKThat's certainly true. But I think, you know, the commerce clause does tend to line up somewhat ideologically so, you know, I think it is safe to expect that the traditional five/four split or four/four, with Justice Kennedy in the middle, is what we would see in any law challenging the healthcare bill. You know, it has been true for the better part of the last half century that liberals and more sort of progressive-inclined jurists tend to favor broad views of government power in this field and that conservatives tend to favor narrow views. I don’t think that's going to change any time soon. I think it really comes down to where Justice Kennedy stands.

NNAMDIFor those in the one-step-at-a-time category, the case goes to the federal appeals court. What can we expect?

VLADECKWell, you know, I think, Kojo, that's a great question, too. You know, the Fourth Circuit is not as conservative as it used to be. President Clinton and President Obama have both put a number of nominees on to the Fourth Circuit. You know, I think it's quite possible that the court of appeals will reverse this decision. That it will find that the bill and the individual mandate is constitutional and indeed that's what every other court to reach the issue so far has decided so, you know, we've got a long way to go before there's any final decision that the individual mandate is unconstitutional. My suspicion is that when all is said and done, the bill will actually be upheld.

NNAMDIOne quick issue to clear up. Here is Jean is Aspen Hill, Maryland. Jean you're on the air. Go ahead, please.

JEANActually, I don't see why they even need to have a constitutional fight. Seems to me, if they just tie the mandate for payment to a mandate for -- against the insurance company for not allowing them pre-existing conditions, then if they opt out of the -- if somebody opts out of the program, they opt out of the right for pre-existing condition coverage. It seems to me that would take the problem right off the table.

NNAMDII'm not sure I understand that, but Stephen Vladeck might.

VLADECKWell, no. I mean, I think it solves one problem, but leaves the other larger one in its stead. I mean, we still have this large problem of millions of Americans who are uninsured. And, you know, the insurance companies are not going to go out of their way to, you know, protect those individuals without some either incentive to do so or some mandate to do so. And I think that's why this bill is such an important step. It's giving, you know, individual consumers of healthcare a real incentive to either buy their own insurance or if they don't buy their own insurance, to pay Uncle Sam, you know, who, at the end of the day, is going to be on the hook for their coverage.

NNAMDIThank you very much for your call, Jean. Stephen Vladeck, thank you for joining us.

VLADECKThank you, Kojo.

NNAMDIStephen Vladeck is a professor of constitutional law and federal jurisdiction at American University's Washington College of Law. We're going to take a short break. And when we come back, Wikileaks revelations. Not the ones you've been reading about in the media, but the ones about countries that may be off the media's radar screen, countries in the developing world and in Africa. I'm Kojo Nnamdi.