For advocates of the Patient Protection and Affordable Care Act, a small victory was won Tuesday in Washington, D.C. By a 2-1 decision, the U.S. Court of Appeals for the District of Colombia upheld the act as constitutional, the third such appeals court that has upheld the law. But the victory is small, as the imminent battle in the Supreme Court will ultimately decide the bill’s fate.
But is the act really constitutional? Before one answers this question, it is important to review the Supreme Court’s jurisprudence over the commerce clause of Article I, Section 8 of the Constitution.
The commerce clause states that Congress shall have power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” The Supreme Court has long given Congress expansive power under the Commerce Clause. Early 20th century cases such as The Lottery Case and The Shreveport Case confirmed Congress’s plenary power over interstate commerce.
These two cases applied not only a formalist test of products crossing state lines but also a realist test over the regulation of intrastate activity as a means to the end of regulating interstate commerce.
Then, the decision in Wickard v. Filburn arrived. The Court ruled that production quotas on the purely intrastate consumption of wheat were constitutional under the Commerce Clause. This is because this personal consumption affects interstate commerce in the aggregate by altering supply and demand and that leaving it unregulated would undercut Congress’s “broader regulatory scheme.”
This ruling stood for decades until the case of United States v. Lopez, in which the Court identified three broad categories in which Congress may regulate interstate commerce: the use of channels of interstate commerce, the instrumentalities of interstate commerce and activities that “substantially affect” interstate commerce.
Further cases have added a distinction in the third category of “substantial affects” of interstate commerce between non-economic activity and economic activity, as the ability to regulate the possession of guns in a school zone is not a matter that can be regulated by Congress due to the non-economic nature of the activity. This third category is extremely important for “Obamacare,” as regulating the health insurance industry is clearly economic in nature.
Principal arguments on “Obamacare” rest on whether Congress has the power to enact the so-called “individual mandate” through its power under the commerce clause.
Opponents argue by drawing an unprecedented distinction between “activity” and “inactivity” in the marketplace. Their argument is that because the individual mandate compels a citizen who has chosen not to engage in commerce to do so by purchasing a product they do not want, there would be no limit to Congress’s power to regulate interstate commerce.
However, there are many problems with this perspective. The health insurance market is unique. The possibility to “opt out” of the health-care market is not possible. If an individual gets sick, there is no other choice but to seek medical treatment.
Furthermore, very few individuals can afford to pay for their own care when the time comes. This causes costs to be shifted from the government and hospitals to paying customers in the form of higher premiums whenever these individuals receive care in an emergency room.
This distinction between “activity” and “inactivity” is simply misguided because individuals cannot stay inactive in the health-care market forever and there will be a time that an individual needs care.
Even if this “inactivity” distinction is recognized, this does not eliminate the individual’s effect on the market. Because this “inactivity” is a decision that will ultimately shift one’s own costs to others in the form of higher costs and premiums, the substantial effects on the health-insurance market are not negated.
Regulating these effects is an essential part in a broader regulatory activity and is clearly within the power of Congress to regulate under the commerce clause.
Furthermore, the act is constitutional because of how it functions. The penalty that the individual mandate places on individuals who do not purchase health insurance collects revenue from part of that individual’s income tax. This will help the government generate revenue that will reimburse the health-care costs the uninsured fail to pay.
If one’s position is that Congress cannot tax for the purpose of providing health insurance, one clearly hasn’t looked at their pay stubs recently. This is done already, through programs like Medicare and Medicaid.
Imposing a tax directly on the free riders of the industry who shift costs to other paying consumers is a clear exercise of the power to tax. While framing the law in this way is not politically convenient because higher taxes are political taboo, it is exactly what the law does.
Zac Ramsey, Political Science/International and Area Studies Senior
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TheJeff 6 months, 2 weeks ago
"Even if this “inactivity” distinction is recognized, this does not eliminate the individual’s effect on the market. Because this “inactivity” is a decision that will ultimately shift one’s own costs to others in the form of higher costs and premiums, the substantial effects on the health-insurance market are not negated." If it could be shown that people walking around slow our economy down by their wasted hours, and further that the failure of a government-bailed-out-car-company would substantially affect everyone besides those who walk, would it be okay, then, to impose that everyone must by a new GM at least once every 5 years?
I'm not denying that people without insurance shift their cost to others, but is that really justification for giving the federal government the power to force us to buy a product from a private company? If that's constitutional, we need a new amendment.
kdbp1213 6 months, 1 week ago
i dislike big brother telling me what i have to buy or not buy. this is the united states of america not the united nanny states of america.
is big brother gonna make me buy a food/drink product that is unfavorable to my diet, dvds of a movie genre i dislike, a higher octane gasoline for my lawn mower, or a tire that does not fit my automobile? i'll buy what i need and what i like..................
Aphrodisiac 6 months, 1 week ago
Really, really good argument kdbp1213. I, too, dislike Big Brother telling what I have to buy or not buy. If I want to buy an abortion, I should damn well be allowed to! Why can't I buy fully-automatic machine guns? Or child slaves? This is ridiculous that the United Nanny States of America are so much in my business.
Why should I have to buy health insurance if I don't need it? I'm a healthy 21-year-old male who eats right and exercises! Let the old people bear the brunt of their being old!