The Individual Mandate Is Constitutional But the Government’s Argument Mostly Misses the Point
Within the next month or so, the Supreme Court likely will decide the constitutionality of the Affordable Care Act. There is no domestic issue more significant than medical care. And there is no single legal issue more fundamental to our system of government than the meaning of the Commerce Clause. So this case is really a big deal.
Attention rightly has focused on the Individual Mandate which requires everyone to purchase health insurance. The government’s principal argument is that virtually everyone at some point will require medical services, that such services affect interstate commerce, that the decision not purchase health insurance will affect the cost of such insurance for those who choose to purchase it and, therefore, the decision not to purchase health insurance substantially affects interstate commerce within the meaning of the Commerce Clause. My problem is with what follows “therefore” and here’s why.
The Constitution is a political document embodying tension between the need for an effective and democratic national government and the protection of individual rights. The Constitution sought to protect individual rights by the well-known system of checks and balances among the three federal branches and by preserving a system of dual sovereignty between the federal and state governments. Grants of federal power were limited by specific enumeration.
Which brings us to the Commerce Clause, one of the express sources of federal power. It is not necessary to analyze the original intent of the Drafters or how that provision should be interpreted in light of modern realities. It is enough to note that the Commerce Clause was not intended to grant unlimited power to the federal government, and there lies the problem with the argument outlined at the beginning of this piece. If the fact that everyone will ultimately require medical care is enough to trigger the Commerce Clause, it is difficult to imagine what would not trigger the Commerce Clause. If you put aside your feelings about the Affordable Care Act itself, it is hard to disagree with “Broccoli Argument” (i.e., that the government’s legal theory in this case would justify a federal healthy-eating mandate because unhealthy eating increases medical insurance costs).
This lack of a limiting principle undermines a core Constitutional principle (dual sovereignty) designed to protect individual freedom. If the Individual Mandate is sustained as a lawful exercise of Commerce power, the Supreme Court will go further than it ever has in interpreting this power, and it has gone very far in doing so over the last seventy-five years.
The two high-water marks of Commerce power jurisdiction are Wickard v. Filburn (1942) and Gonzalez v. Raich (2005). In those cases the Supreme Court held that activities, seemingly insignificant in terms of interstate commerce (growing wheat for home use in one case and growing marijuana for personal medical use in the other), could substantially affect interstate commerce when aggregated with similar activities of others and, therefore, were subject to federal regulation.
The question of Commerce Clause power is really a question of where the line should be drawn between the power specifically enumerated to the federal government and that generally reserved to the states. If the Court draws the line sought by the government, it is hard to see where the express powers end and the generally reserved power begins.
It is not unreasonable to argue that if growing wheat for home use substantially affects interstate commerce, than so would a decision not to purchase health care insurance. The problem with the argument is that individuals, by the virtue of the fact that they are alive, substantially affect interstate commerce when the aggregating principle is applied. And this would obliterate the limited nature of the Commerce Clause.
It is not surprising that the Solicitor General was unable to respond when asked to succinctly state the limiting principle underlying his argument. It is surprising that the Government has chosen to take its stand on the Commerce Clause and relegated the Necessary and Proper Clause to a secondary place.
The Individual Mandate squarely falls within the Necessary and Proper Clause of the Constitution as it has been interpreted since McCulloch v. Maryland (1819). In that case, the authority of the federal government to establish a national bank was upheld although there was no express Constitutional power authorizing it to do so. In a famous passage that squarely applies to the Individual Mandate, the Court declared: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”
The legitimate end in McCulloch was conducting the financial operations of the nation; here it is regulation of the national health insurance industry which surely involves interstate commerce.
Case law has interpreted “necessary” in this context to mean “reasonably adapted.” Can there be any doubt that the Individual Mandate is reasonably adapted to the end of reforming the national health care insurance system to provide uniform rates and ensure that individuals may not be denied coverage? Similarly, “proper” in this context means that the law not violate some other Constitutional right. Laws that require individuals to purchase private insurance have been found to be Constitutional.
The suggestion that the mandate might not be proper because it would violate state sovereignty is precisely the point that was rejected in McCulloch. If the law is reasonably adapted to a permissible end, the federal power is established and issues of exclusive state sovereignty fall away.
There is a compelling case under the Necessary and Proper Clause and a dubious one under the Commerce Clause. Why the government has chosen to put most of its eggs in the Commerce Clause basket is beyond me.
The Rest of the Way, Part 2 