The HIT Realist: Is the HITECH Act Constitutional?

MDNG Primary CareNovember 2009
Volume 10
Issue 11

Skeptics like Borges disagree with claims that HIT adoption will improve quality of care and cut costs, and feel that overall the push to adopt complex EHRs will be a bad deal for physicians.

There has been much discussion about the HITECH Act and the effects it will have on healthcare in this country. The health IT industry, anticipating a fi nancial windfall, has been vocal in its support, while the federal government claims that EHR use will lead to an increase in quality, a decrease in costs, and an overall improvement in patient care (cf, the answer to the question “Why health IT?” at Skeptics like me disagree with these claims and feel that overall the push to adopt complex EHRs will be a bad deal for physicians, most of whom will bear large fi nancial losses and have to markedly change the way that they interact with patients.

In the midst of this discussion, several opponents have questioned the constitutionality of the HITECH Act. Constitutional reviews of legislation usually rest on one of two claims: (1) lack of federal power; and (2) violation of individual rights protected by the Bill of Rights (

The Commerce Clause

The US Constitution empowers each branch of government with a specifi c set of duties, reserving all other powers for the states and for the people. The Commerce Clause allows for the regulation of economic activity across state lines that involve the production, distribution, or consumption of commodities. With the HITECH Act, the administration and Congress appear to be working under a distorted interpretation of the Commerce Clause that allows the feds to regulate and control just about everything, including the use of certifi ed EHR systems (c-EHR).

The doctor—patient relationship and the use of c-EHR can hardly be regarded as commercial activities. A stricter interpretation of the Commerce Clause would hold that the government does not have the authority to force doctors to spend their money on technology. There would appear to be some precedent for this view of things. In a Washington Post editorial, David B. Rivkin Jr. and Lee A. Casey noted that, “In two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifi cally rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact” (

The Bill of Attainder

Article I, Section 8 of the US Constitution gives Congress the power to tax, borrow, and spend money; raise and support armies; declare war; establish post offi ces; and regulate commerce. However, it is politically unpalatable for Congress to tax physicians for not meeting the qualifi cations for “meaningful use” of a c-EHR, so they decided to impose penalties to legally force physicians to adopt health IT. The legal defi nition of “penalty” is: “1) in criminal law, a money fi ne or forfeiture of property ordered by the judge after conviction for a crime; 2) an amount agreed in advance if payment or performance is not made on time, such as a “late payment” on a promissory note or lease, or a fi nancial penalty for each day a building contractor fails to complete a job” ( Thus, the “penalty” for non-meaningful use is really a fi ne levied for the “crime” of not purchasing and using a c-EHR system.

Let’s take this a bit further: a bill of attainder is an act of the legislature declaring a person or group guilty of a crime and punishing them without a trial. Article 1, Section 9 of the US Constitution specifi cally forbids the federal and state governments to enact bills of attainder ( Very few acts of Congress have been overturned due to a court subsequently determining them to be an unconstitutional bill of attainder. In one such ruling, Cummings v. Missouri, the court stated that “A bill of attainder, is a legislative act which infl icts punishment without judicial trial and includes any legislative act which takes away the life, liberty or property of a particular named or easily ascertainable person or group of persons because the legislature thinks them guilty of conduct which deserves punishment” (

In another case, US v. Lovett, the court stated that “Legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to infl ict punishment on them without a trial, are ‘bills of attainder’” (, and are thus prohibited.

Based on these precedents, I think the legality of the HITECH Act is murky at best. It fails not only because Congress lacks the power to regulate this activity (per the Commerce Clause), but also because the Act appears to function as a prohibited bill of attainder that violates the individual rights of physicians.

Alberto Borges, MD, is in private practice and is an associate clinical professor of medicine at the George Washington University in Washington, DC. Check out his website at opinions expressed in this column do not necessarily reflect those of MDNG.

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