Democrat in Congress Claims Legal Challenges to Health Care Pave Way for Challenging Social Security, Medicare

By Fred Lucas | January 27, 2011 | 4:05 AM EST

Rep. Brad Sherman (D-Calif.). (AP photo)

Washington ( – Lawsuits that contend the new health-care law is unconstitutional because of an individual mandate to purchase insurance could pave the way for future legal challenges to the constitutionality of Social Security and Medicare, according to Rep. Brad Sherman (D-Calif.).

“I believe the legal attacks against the health bill are just the foundation for the legal attacks against Social Security and on Medicare,” Sherman told “Right now and throughout my entire lifetime, I have been forced to buy old-age insurance. That’s called Social Security. I’ve been forced to buy disability insurance. That’s Social Security disability. Since the 1960s, forced to buy health insurance, but only health insurance that applies when I’m 65-years-old. We call that Medicare.”

A federal court in Virginia ruled in December that the health-care law enacted last year is unconstitutional because it requires individuals to purchase insurance. In this case, the commonwealth of Virginia brought the suit. Separately, 26 states are in a combined lawsuit in federal court in Pensacola, Fla. A separate federal court in Virginia and one in Michigan determined the mandate is constitutional. The matter is expected to be determined by the U.S. Supreme Court.

The $1 trillion health-care overhaul includes the mandate that individuals purchase insurance, requires employers to provide insurance and establishes health-insurance exchanges.

But if the individual mandate to purchase health insurance is declared unconstitutional, it would pave the way to challenge the constitutionality of Social Security and Medicare because both programs require people to pay into them and participate.

“When Republicans say you can’t force people to buy disability insurance, health insurance and old-age insurance, what they’re really saying is that Social Security and Medicare are going to come under attack and return this country to the situation we had in the 1920s,” Sherman said.

“This legal attack on Medicare and Social Security -- they ought to have the guts to stand up and say they don’t want those checks to go out and they don’t want Medicare to continue. Instead they’re trying to nibble away,” Sherman said. “Start by saying you can’t force people to buy health insurance, when it applies before they’re 65, and then attack buying health coverage or forcing people to pay for Medicare, which is health insurance, after they’re 65.”

If the U.S. Supreme Court sides with states that the law is unconstitutional, it should have no bearing on other entitlements, said Robert Alt, senior legal fellow at The Heritage Foundation, a conservative think-tank.

That is because the legal justification for the health mandate is the Commerce Clause of the Constitution. Social Security, Medicare and Medicaid, however, are controlled by Congress’s authority to tax and spend, Alt said.

“While we wouldn’t agree with it as policy, there are ways in which Obama could have structured a program that would have complied with precedent that has been set by things like Social Security,” Alt told

“He chose not to do it because it was so politically unpopular to do so. In order to make the accounting look better and in order not to make it appear he was greatly increasing taxes, he made the mandate one where it was not a government program but one where you were required to purchase a product on the open market or pay a penalty to the government for failing to do so.”

“They don’t rely on the Commerce Clause for Social Security,” Alt continued. “It’s pursuant to Congress’s taxing and spending authority. Keep in mind, it’s a government program. I as a matter of policy would disagree with them enacting any single-payer program, but as a constitutional matter it would at least comport with the precedents established by Social Security.”