The Constitutional Case for the Individual Mandate
The following editorial, written by Professor Chris Bryant, was published in the February 2012 CBA Report.
The individual mandate provision of the Affordable Care Act (ACA) will, starting in 2014, require that most Americans obtain health insurance or pay a monetary penalty. Jack Painter and other opponents of the ACA claim that this provision exceeds the scope of Congress's power. But in the last three-quarters of a century, the Supreme Court has on only two occasions invalidated a federal statute on the ground that it went beyond Congress's sweeping authority to regulate interstate commerce. In both cases the Court concluded that Congress lacked power because the matters addressed were in no way economic in nature. Obviously, neither of these cases supplies any precedent for invalidating the ACA. That statute regulates the health insurance industry, which none can doubt is economic in nature, and which pays for what amounts to nearly 18 percent of the U.S. economy.
It bears emphasis that the only genuine controversy concerns whether Congress can enact a health-insurance mandate. There is simply no serious federal constitutional argument that states lack the power to impose such a mandate, which is why Mr. Painter's appeal to the Declaration of Independence generates more heat than light.
Does this power belong solely to state governments? The Constitution grants Congress power "To regulate Commerce . . . among the several States" and "To make all Laws which shall be necessary and proper for carrying into execution" all other powers that the Constitution vests in the federal government. Whatever the outer boundaries of "Commerce" may be, the Supreme Court ruled more than sixty years ago that the business of insurance is "Commerce." I think that should end the matter, and I am not alone in this view. Former Reagan Administra tion Solicitor General Charles Fried, Sixth Circuit Judge Jeffrey Sutton, and D.C. Circuit Judge Laurence Silberman think so too. Though their integrity may have cost them some fair-weather friends, two years ago all three would have topped any conser vative's list of brilliant and honorable lawyers.
Even if some defect lurked in this Commerce Clause analysis, Congress would still have power to enact the mandate under the Necessary and Proper Clause. Consider the ACJ\s prohibitions on denial of coverage to persons with pre-existing conditions. Even the courts striking down the individual mandate concede Congress's power to enact these provisions. But the power to enact the individual mandate then follows as night follows day. Without a mandate the pre-existing-conditions sections of the Act would create a perverse incentive to wait until you are sick to buy insurance. Hence, the Act requires that everybody buy health insurance now.
It is no answer to say, as Mr. Painter does, that Congress cannot create a prob lem and thereby provide itself the power to fix it. One could just as easily argue that the need to punish mail robbers is a problem created by Congress's estab lishment of a Post Office. The question should be: is the ancillary part of the law genuinely essential to a rationale scheme of regulation lawfully enacted under some other enumerated power? As ap plied to the individual mandate, it would be irrational to conclude otherwise.
Still, those who think the individual mandate is unconstitutional insist that all this is irrelevant. They contend the individual mandate is a regulation of inactivity, and all prior regulation under the Commerce Clause has been of activ ity of some kind.
The mandate, however, is not really a regulation of inactivity at all. Rather it is a regulation of something we would all think of as activity--namely, paying for healthcare. The Act regulates the manner in which this is done. With healthcare, the question is not whether, but when. We simply cannot avoid being health care consumers. And for many of us, that healthcare will be catastrophically expensive and well beyond our means to pay.
But even assuming for argument's sake that the healthcare insurance man date regulates inactivity, so what? The notion that Congress's regulatory power stops at inactivity has no support in the countless cases construing the Com merce Clause. Nor would such a limit meaningfully constrain Congress or protect individual liberty. Consider the irony that none of the arguments arrayed against the ACA in any way challenges the power of Congress to enact a single payer system such as one finds in Great Britain. All agree that Congress could simply tax the citizenry and use the revenue to pay for healthcare costs, as it already does via Medicaid. The AC J\s individual mandate was enacted as part of an attempt to preserve a more market oriented approach. In what way does it protect liberty to allow Congress to take your money but prohibit it from requir ing instead that you spend it to purchase private insurance?
Mr. Painter tries to deflect this argument, asserting that "the fact that Congress can use the taxing power to tax people if they choose to enter the stream of commerce doesn't mean it can use the commerce power to force them to enter the stream of commerce." This answer illustrates the absurdity of the activity/ inactivity distinction. Were it law, you would be beyond congressional power so long as you never earned income, bought anything, sold anything, or consumed anything. One might as well limit con gressional power to those citizens who breathe.
Mr. Painter says that the Administra tion can identify no limiting principle circumscribing congressional power. But nothing said in support of the ACA in anyway undermines the limit that the Court itself recognized, namely that the Commerce power extend only to regula tions of an economic nature. No one contends that the ACA falls on the wrong side of that line.
If one were really concerned, as in fact I am, about run-away federal power, the truly troubling case was Raich v. Gonzales (2005). There the Court upheld the power of Congress to imprison Angel Raich for mere possession of any amount of marijuana, even upon the government's stipulation that she had done everything she could to insulate the marijuana she possessed, which had never been bought or sold, from any im pact on any state other than California, which had legalized marijuana for her intended use. Indeed, it was stipulated that the marijuana Raich possessed had been "grown using only soil, water, nutrients, equipment, supplies, and lumber originating from or manufactured within California." Dissenting, Justice Thomas lamented that "[o]ne searches the [ma jority's] opinion in vain for any hint of what aspect of American life is reserved to the States.... . If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States." Yet from so many of those now so alarmed by the ACJ\s individual mandate there was then a thunderous silence.
If I believed that a ruling invalidat ing the ACJ\s individual mandate would be the first step on a path of principled, apolitical judicial enforcement of limits on congressional authority, none would applaud the result with greater enthusiasm. But I do not believe that. Federalism objections to the ACA are part of a century-old pattern of conservatives marching forward federalism principles when Congress does something they do not like, and then conveniently forgetting them when Congress does something they do like.
A selectively invoked federalism is not really federalism at all. It is instead merely a tool for jurists to dismantle laws they do not like for other, unspoken reasons, leaving intact laws equally ob noxious to federalism principles that the judges happen to believe salutary. Such a regime empowers unelected, life-tenured judges to pick and choose among federal statutes on a basis they need never articulate let alone defend. This is the kind of thing that used to really bother conservatives.