Healthcare Showdown: the Preview, Part 2

Next Tuesday, the Supreme Court hears arguments on the constitutionality of the individual mandate. (The Justices will be coming down from the high of Monday’s argument about the Anti-Injunction Act, described in my earlier post).      

The individual mandate is the centerpiece of Obamacare (the Affordable Care Act or ACA). The mandate, officially labeled the “minimum coverage provision,” would require most Americans to obtain health insurance by January 1, 2014, or pay a financial penalty — perhaps as high as $3,000 — with their tax return.  The constitutional issue is whether Congress has the authority to impose such a mandate.  As we often discuss here on Ricochet, the Constitution grants only certain “enumerated powers” to Congress.

The Obama administration follows the script penned by congressional Democrats, that the ACA is an exercise of Congress’s power to regulate “commerce . . . among the several states.” Granted, unless your doctor happens to live in a different state, most individual healthcare transactions do not take place “among the several states.”  Unfortunately, we continue to live under the awful precedents of the New Deal when the Supreme Court held that Congress has the power to regulate economic activity that, in the aggregate, will affect interstate commerce.  Most infamously, in 1942, the Court upheld New Deal regulations that dictating the amount of wheat a person could grow for his own family’s consumption!  (Wickard v. Filburn).  And if the ACA is a constitutional regulation of interstate commerce, then the mandate “is within Congress’s power to enact not because it is a necessary component of a broader scheme of interstate economic regulation.”

As a fallback, the government also argues that ACA is justified under the General Welfare Clause, which has been construed to allow Congress to impose taxes to promote “the general welfare.”  For the purposes of this argument, the penalty clause of the individual mandate is a “tax,” even though the President and members of Congress have vehemently denied that Obamacare contains any taxes.

The main brief opposing the individual mandate (submitted by 26 states) points out that forcing people to buy insurance is not a “regulation of commerce.”  The main brief says: “The individual mandate rests on a claim of federal power that is both unprecedented and unbounded: the power to compel individuals to engage in commerce in order more effectively to regulate commerce.  This asserted power does not exist.”  If regulating inactivity were a “necessary and proper” means of regulating commerce, they argue, we would expect to see more of it, but in 220 years, Congress has never required individuals to purchase particular goods or services as a condition of being alive.   The government, of course, denies that it is trying to regulate inactivity; rather, they repeat the argument they sold to several lower courts, that the mandate regulates “economic decisions.”

The states also argue against the mandate on the basis of federalism.  The individual mandate asserts an authority that “smacks of the police power, which the framers reserved to the states.”  This is the basic Tenth Amendment point. In its amicus brief, the Cato institute adds another Tenth Amendment argument: that the individual mandate usurps power from “the people.”  Remember, the Tenth Amendment states that the powers not delegated to theUnited States“are reserved to the States, respectively or to the people.”  In recent years, the Supreme Court has held that the Tenth Amendment stands for an “anti-commandeering” principle, ie, that the federal government cannot commandeer the state governments to facilitate federal policies.  Cato argues (persuasively, in my opinion) that if the anti-commandeering principle protects the states, then it also protects the other beneficiaries of the Tenth Amendment: the people.  Surely, the freedom to choose whether and when to buy health insurance is one of those powers reserved to the people.

Note: I have only scratched the surface of the arguments submitted to the Court.  There were 80 amicus briefs filed on the individual mandate alone!  You can find them at ScotusBlog.

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