This week the Supreme Court heard arguments about the Affordable Care Act, focusing primarily on the constitutionality of the mandate that all people buy health insurance or face a financial penalty. I’ve been reading a lot about the case and found the arguments very interesting. I want to address two items that seem likely to be important to the eventual decision.
First, is health insurance fundamentally different than other forms of economic activity? As Justice Scalia asked, is requiring all individuals to purchase health insurance the same as requiring them to buy a new car? The prominence of this question surprises me, because it seems like it should be very simple to answer. Healthcare is unique in that every member of society will be a consumer of it at some point, and when and how much is completely unpredictable.
This takes two forms. The first is in terms of risk: Anyone who cannot afford to pay for emergency surgery out of pocked, which is most of the population, is gambling by going without health insurance. If they were to have an accident or contract a disease requiring expensive treatment there would certainly be consequences for them, but they would receive the treatment they need, and society would bear the cost. In many cases opting out of treatment entirely isn’t even an option. Part of being a member of our society is having the protection of our medical system available to us.
The second is in terms of time: A young healthy person who does not need health insurance will, again with the exception of the incredibly wealthy, someday become sick and need health services they cannot afford. In this regard the individual mandate is forcing people into the market earlier, rather than forcing people into a market they could otherwise choose not to enter.
Many people seem certain that it is unconstitutional for the government to require an activity vs. an inactivity. There is no such language in the constitution. Rather it is an interpretation of it, and, at least according to some credible people, has very little to do with the text of the constitution.
Now, is it within the power of Congress? Well, the power of Congress is to regulate interstate commerce. Is health care commerce among the states? Nobody except maybe Clarence Thomas doubts that. So health care is interstate commerce. Is this a regulation of it? Yes. End of story.
Here’s another thing Marshall said. To regulate is “to make the rule for.” Does this make a rule for commerce? Yes!
The limit is the Constitution. What Congress does has to be in the enumerated powers. One of those powers is the Interstate Commerce Clause. What are the limits on that power? It only applies to regulations that are interstate and commercial. So Congress has to be actually trying to address a commercial problem that spills over state lines. And that’s clearly true here.
So here it seems there is a clear answer to “where in the Constitution does congress get this power?” The question I’ve not seen addressed clearly is why that answer isn’t enough. Most of the argument I’ve been able to find calling the mandate unconstitutional focus on the curtailment of freedom, the unprecedented nature of the law, or some other ideological opposition that addresses what limits they want on the government rather than the text of the Constitution.