EPThttp://www.washingtonpost.com/politics/supreme-court-to-rule-thursday-on-health-care-law/2012/06/28/gJQAarRm8V_story.html
If you don't know what "Obamacare" is, read up on the wikipedia article: http://en.wikipedia.org/wiki/Patient_Protection_and_Affordable_Care_Act .
Starting on Monday, from March 26-28, the Supreme Court will be hearing oral arguments on Florida v. United States Department of Health and Human Services, with a decision sometime in June. This is probably one of the most anticipated cases in recent times, with huge implications both primarily on the future health care infrastructure of the United States and secondarily on the limits of the federal government's powers. It will also be an unusually long case, with nearly 6 hours of oral arguments scheduled.
An exposition of the plaintiffs' view of the case, in the words of David B. Rivkin Jr.and Lee A. Casey, who represented the 26 states in before the trial and appellate courts:
+ Show Spoiler +
Source: http://online.wsj.com/article/SB10001424052702304636404577291883293776326.html
By DAVID B. RIVKIN JR. AND LEE A. CASEY
On Monday, the Supreme Court will begin an extraordinary three-day hearing on the constitutionality of ObamaCare. At stake are the Constitution's structural guarantees of individual liberty, which limit governmental power and ensure political accountability by dividing that power between federal and state authorities. Upholding ObamaCare would destroy this dual-sovereignty system, the most distinctive feature of American constitutionalism.
ObamaCare mandates that every American, with a few narrow exceptions, have a congressionally defined minimum level of health-insurance coverage. Noncompliance brings a substantial monetary penalty. The ultimate purpose of this "individual mandate" is to force young and healthy middle-class workers to subsidize those who need more coverage.
Congress could have achieved this wealth transfer in perfectly constitutional ways. It could simply have imposed new taxes to pay for a national health system. But that would have come with a huge political price tag that neither Congress nor the president was prepared to pay.
Instead, Congress adopted the individual mandate, invoking its power to regulate interstate commerce. The uninsured, it reasoned, still use health services (for which some do not pay) and therefore have an impact on commerce, which Congress can regulate.
Congress's reliance on the Commerce Clause to support the individual mandate was politically expedient but constitutionally deficient. Congress's power to regulate interstate commerce is broad but not limitless.
First among the limits is the very nature of congressional authority, which is based on specifically enumerated powers. As the Supreme Court has consistently acknowledged, the Constitution denies the federal government the type of broad public health and welfare regulatory authority known as a "general police power," which is reserved exclusively to the states. The court has also repeatedly held that preservation of this division between federal and state authority is a matter for supervision by the courts, and its precedents make clear that congressional Commerce Clause regulation must be subject to some judicially enforceable limiting principle.
The defining characteristic of a general police power is the states' ability to regulate people simply as people, regardless of an individual's activities or interaction with goods or services that might themselves be subject to regulation. Thus, the Supreme Court has ruled that states, exercising their general police power, can require all resident adults to obtain a smallpox vaccination. Only this type of authority could support ObamaCare's individual mandate, which applies to all Americans as such, regardless of any goods they may buy or own, or any activities in which they might choose to engage.
Congress has crossed a fundamental constitutional line. Neither the fact that every individual has some discernible impact on the economy, nor that virtually everyone will at some point in time use health-care services, is a sufficient basis for federal regulation. Both of these arguments, advanced by ObamaCare's defenders, are flawed because they admit no judicially enforceable limiting principle marking the outer bounds of federal authority.
On the left and right, legal thinkers too often forget that Congress has no constitutional power simply to regulate the economy. Rather, that power comes from a series of discrete authorities—to regulate interstate and foreign commerce, to tax, spend and borrow, to coin money and fix its value and so forth—that together allow it broad control over the nation's economic affairs. As a result, congressional efforts to address national problems may well be less economically efficient than would a more straightforward exercise of police power. The Constitution subordinates efficiency to guarantee liberty.
The Constitution divides governmental power between federal and state governments so that one may check the other. This requires that the electorate be able to tell, especially on Election Day, which government is responsible for which policies and regulations with which we live.
As Justice Anthony Kennedy explained in one leading Commerce Clause case, United States v. Lopez (1995): "The theory that two governments accord more liberty than one [emphasis added] requires for its realization two distinct and discernible lines of political accountability: one between the citizens and the Federal Government; the second between the citizens and the States." Congress's use of its commerce power in passing ObamaCare eradicates those "discernible lines of political accountability."
Even so, Congress's enumerated powers support a vast and ever growing regulatory state, much of it based upon the Commerce Clause. Neither that Leviathan, nor the Supreme Court's precedents upholding it, is now at issue.
Justice Antonin Scalia explained in another of the Supreme Court's recent Commerce Clause cases, Gonzales v. Raich (2005), that the power to regulate interstate commerce, especially in conjunction with the power "to make all laws which shall be necessary and proper [emphasis added] for carrying into execution" its enumerated powers, gives Congress broad authority to reach even local and non-commercial activities when necessary to make legitimate regulatory schemes effective. Raich upheld federal control of purely local cultivation, sale and use of marijuana, and it is often incorrectly cited as support for the individual mandate.
But the Necessary and Proper Clause does not guarantee Congress whatever power it would like to reach its policy goals. That provision supports only otherwise legitimate exercises of Congress's enumerated powers. So under the Commerce Clause, Congress can try to achieve universal coverage through regulating the interstate health-care insurance market, as ObamaCare does, by requiring insurance companies operating in that market to cover pre-existing conditions. Then under the Necessary and Proper clause, Congress could also require employers to collect data on pre-existing conditions from new hires so insurers can better plan.
Requiring all Americans to have health insurance may well create a new revenue stream for insurance companies so as to lessen these new burdens on them, but it does nothing to make these new coverage requirements effective regulations of interstate commerce as the Supreme Court uses that term. In particular, the individual mandate does not prevent avoidance or evasion of these new insurance regulations. Nor does it make compliance easier to police, as was the case in Raich. There, the ability to regulate local marijuana production and use was necessary to make its interstate regulation effective because, as Justice Scalia noted, the homegrown variety "is never more than an instant from the interstate market."
Unlike the regulations at issue in Raich, the individual mandate applies regardless of anyone's interaction with a commodity, service or other activity, like the interstate sale or transport of marijuana, that Congress can legitimately regulate. Put another way, the Controlled Substances Act is about the regulation of drugs, not people. It affects individuals only to the extent that they interact with the substances it proscribes, and it can be avoided by simply avoiding those substances.
Americans cannot escape the individual mandate by any means because it regulates them as people, simply because they are alive and here. That requires police power authority. Permitting Congress to exercise that authority—however important its ultimate goal—is not constitutionally proper and would forever warp the federal-state division of authority.
Messrs. Rivkin and Casey are lawyers who served in the Justice Department during the Reagan and George H. W. Bush administrations. They represented the 26 states in their challenge to ObamaCare before the trial and appellate courts.
By DAVID B. RIVKIN JR. AND LEE A. CASEY
On Monday, the Supreme Court will begin an extraordinary three-day hearing on the constitutionality of ObamaCare. At stake are the Constitution's structural guarantees of individual liberty, which limit governmental power and ensure political accountability by dividing that power between federal and state authorities. Upholding ObamaCare would destroy this dual-sovereignty system, the most distinctive feature of American constitutionalism.
ObamaCare mandates that every American, with a few narrow exceptions, have a congressionally defined minimum level of health-insurance coverage. Noncompliance brings a substantial monetary penalty. The ultimate purpose of this "individual mandate" is to force young and healthy middle-class workers to subsidize those who need more coverage.
Congress could have achieved this wealth transfer in perfectly constitutional ways. It could simply have imposed new taxes to pay for a national health system. But that would have come with a huge political price tag that neither Congress nor the president was prepared to pay.
Instead, Congress adopted the individual mandate, invoking its power to regulate interstate commerce. The uninsured, it reasoned, still use health services (for which some do not pay) and therefore have an impact on commerce, which Congress can regulate.
Congress's reliance on the Commerce Clause to support the individual mandate was politically expedient but constitutionally deficient. Congress's power to regulate interstate commerce is broad but not limitless.
First among the limits is the very nature of congressional authority, which is based on specifically enumerated powers. As the Supreme Court has consistently acknowledged, the Constitution denies the federal government the type of broad public health and welfare regulatory authority known as a "general police power," which is reserved exclusively to the states. The court has also repeatedly held that preservation of this division between federal and state authority is a matter for supervision by the courts, and its precedents make clear that congressional Commerce Clause regulation must be subject to some judicially enforceable limiting principle.
The defining characteristic of a general police power is the states' ability to regulate people simply as people, regardless of an individual's activities or interaction with goods or services that might themselves be subject to regulation. Thus, the Supreme Court has ruled that states, exercising their general police power, can require all resident adults to obtain a smallpox vaccination. Only this type of authority could support ObamaCare's individual mandate, which applies to all Americans as such, regardless of any goods they may buy or own, or any activities in which they might choose to engage.
Congress has crossed a fundamental constitutional line. Neither the fact that every individual has some discernible impact on the economy, nor that virtually everyone will at some point in time use health-care services, is a sufficient basis for federal regulation. Both of these arguments, advanced by ObamaCare's defenders, are flawed because they admit no judicially enforceable limiting principle marking the outer bounds of federal authority.
On the left and right, legal thinkers too often forget that Congress has no constitutional power simply to regulate the economy. Rather, that power comes from a series of discrete authorities—to regulate interstate and foreign commerce, to tax, spend and borrow, to coin money and fix its value and so forth—that together allow it broad control over the nation's economic affairs. As a result, congressional efforts to address national problems may well be less economically efficient than would a more straightforward exercise of police power. The Constitution subordinates efficiency to guarantee liberty.
The Constitution divides governmental power between federal and state governments so that one may check the other. This requires that the electorate be able to tell, especially on Election Day, which government is responsible for which policies and regulations with which we live.
As Justice Anthony Kennedy explained in one leading Commerce Clause case, United States v. Lopez (1995): "The theory that two governments accord more liberty than one [emphasis added] requires for its realization two distinct and discernible lines of political accountability: one between the citizens and the Federal Government; the second between the citizens and the States." Congress's use of its commerce power in passing ObamaCare eradicates those "discernible lines of political accountability."
Even so, Congress's enumerated powers support a vast and ever growing regulatory state, much of it based upon the Commerce Clause. Neither that Leviathan, nor the Supreme Court's precedents upholding it, is now at issue.
Justice Antonin Scalia explained in another of the Supreme Court's recent Commerce Clause cases, Gonzales v. Raich (2005), that the power to regulate interstate commerce, especially in conjunction with the power "to make all laws which shall be necessary and proper [emphasis added] for carrying into execution" its enumerated powers, gives Congress broad authority to reach even local and non-commercial activities when necessary to make legitimate regulatory schemes effective. Raich upheld federal control of purely local cultivation, sale and use of marijuana, and it is often incorrectly cited as support for the individual mandate.
But the Necessary and Proper Clause does not guarantee Congress whatever power it would like to reach its policy goals. That provision supports only otherwise legitimate exercises of Congress's enumerated powers. So under the Commerce Clause, Congress can try to achieve universal coverage through regulating the interstate health-care insurance market, as ObamaCare does, by requiring insurance companies operating in that market to cover pre-existing conditions. Then under the Necessary and Proper clause, Congress could also require employers to collect data on pre-existing conditions from new hires so insurers can better plan.
Requiring all Americans to have health insurance may well create a new revenue stream for insurance companies so as to lessen these new burdens on them, but it does nothing to make these new coverage requirements effective regulations of interstate commerce as the Supreme Court uses that term. In particular, the individual mandate does not prevent avoidance or evasion of these new insurance regulations. Nor does it make compliance easier to police, as was the case in Raich. There, the ability to regulate local marijuana production and use was necessary to make its interstate regulation effective because, as Justice Scalia noted, the homegrown variety "is never more than an instant from the interstate market."
Unlike the regulations at issue in Raich, the individual mandate applies regardless of anyone's interaction with a commodity, service or other activity, like the interstate sale or transport of marijuana, that Congress can legitimately regulate. Put another way, the Controlled Substances Act is about the regulation of drugs, not people. It affects individuals only to the extent that they interact with the substances it proscribes, and it can be avoided by simply avoiding those substances.
Americans cannot escape the individual mandate by any means because it regulates them as people, simply because they are alive and here. That requires police power authority. Permitting Congress to exercise that authority—however important its ultimate goal—is not constitutionally proper and would forever warp the federal-state division of authority.
Messrs. Rivkin and Casey are lawyers who served in the Justice Department during the Reagan and George H. W. Bush administrations. They represented the 26 states in their challenge to ObamaCare before the trial and appellate courts.
An opinion piece in defense of Obamacare's constitutionality by Nathan Cortez, law professor at Southern Methodist University:
+ Show Spoiler +
By Nathan Cortez
SPECIAL TO THE AMERICAN-STATESMAN
Updated: 8:35 p.m. Saturday, Sept. 17, 2011
Published: 8:24 p.m. Saturday, Sept. 17, 2011
It is hard to overstate the controversy generated by last year's health care reform legislation, the Patient Protection and Affordable Care Act.
Politically, perhaps the most controversial thing President Barack Obama has done in office is sign the legislation. The 2010 midterm elections were cast as a referendum on the law, and it will remain a flash point throughout the 2012 campaigns.
Legally, the controversy swirls around the individual mandate — the requirement that most Americans buy health insurance or pay a penalty. Can the federal government penalize us for not buying health insurance from private companies?
Unlike states, whose constitutions allow them to make us buy auto insurance, or as in Massachusetts, health insurance, the federal government must tether its laws to specific powers enumerated in the U.S. Constitution. State constitutions certainly impose constraints, but not in this way.
In enacting the mandate, Congress relied on two related powers — those addressed in the commerce clause and the necessary and proper clause.
The first allows Congress to regulate commerce "among the several States," under the rationale that we need uniform regulation for interstate industries and that we don't want states discriminating against out-of-state businesses. The necessary and proper clause, as the name suggests, allows Congress to make laws that are "necessary and proper" for executing its other powers.
Since the 1940s, courts have interpreted these clauses broadly.
The commerce clause allows Congress to regulate not only obvious things, such as products sold across state lines, but activities that substantially affect interstate commerce, even if the activities themselves are local and not commercial. The main requirement is that the local, noneconomic activity must be essential to a larger scheme regulating commerce.
The Justice Department is using this argument to defend the mandate. But it need not — health insurance is a unique animal, and the decision to go uninsured is neither purely local nor noneconomic.
Opponents of the mandate disagree. They argue that the Commerce Clause, even when paired with the necessary and proper clause, doesn't allow Congress to regulate inactivity — the choice to be left alone, to take no action if one so chooses. Moreover, the mandate is unprecedented. The federal government has never tried to require action over inaction.
And where would federal powers stop? What makes some uncomfortable about the mandate is the difficulty of identifying a limiting principle. If Congress can require us to buy health insurance, then why not make us buy Chevy trucks to keep General Motors from going bankrupt, or broccoli to boost domestic growers? The strong intuition is that the commerce clause cannot grant Congress the plenary powers reserved for states. If Congress can regulate inaction as part of interstate commerce, is there anything it couldn't regulate?
There are several rebuttals.
First, Congress regulates all kinds of inaction related to commerce. Indeed, the first federal law about health care in 1790**** was a mandate — ship owners had to insure and provide care to merchant seamen.
More importantly, this type of "inaction" has special significance in the health insurance market. In fact, the decision to go uninsured is itself a form of action. The uninsured are actively choosing to pay out of pocket for care, or to let others pay for it.
Everyone needs health care at some point. Nearly two-thirds of the uninsured use one of our most expensive forms of health care (the emergency room) at least once a year. So the decision to go uninsured is not "inactivity" at all; rather, it is a decision about how to finance care that they inevitably will need.
Which argument will persuade a majority of Supreme Court justices? As with most cases, past judicial opinions will shape the outcome. Does the mandate resemble laws that courts upheld under the Commerce Clause? Or does it more closely align with laws that were struck down?
For example, in 1938, Congress passed the Agricultural Adjustment Act, which limited wheat production to stabilize prices during the Great Depression. The law allotted Roscoe Filburn 11 acres, but he grew 12 extra for himself.
The Supreme Court upheld the law in Wickard v. Filburn, even though growing wheat for personal consumption was a local activity and was not itself commercial. If Congress couldn't regulate Filburn's personal consumption, then he and others could reduce their demand for wheat sold on the market, which would thwart the law and destabilize prices.
Another key case is the Supreme Court's 2005 opinion in Gonzalez v. Raich. There, the court considered whether the commerce clause allows Congress to outlaw growing marijuana locally and possessing it for personal medical use.
The court held that the Controlled Substances Act could reach even these local, noneconomic activities. Echoing Wickard, the court in Raich recognized that if Congress couldn't regulate marijuana grown and consumed at home, it would undermine federal efforts to regulate the trade in illicit drugs.
Of course, the commerce clause has limits. In United States v. Lopez, the Supreme Court struck down parts of the Gun Free School Zones Act because it reached too far into local activity (carrying guns near schools) and because its link to interstate commerce was too attenuated. The government claimed that gun violence near schools generates significant expenses, discourages traveling through unsafe areas and makes students less productive, which in aggregate substantially affects interstate commerce. The court disagreed.
In United States v. Morrison, the court used similar reasoning to strike down parts of the Violence Against Women Act, which allowed female victims of violent crimes to file civil suits under federal law. Congress documented that gender-motivated violence affects the national economy in several ways — for example, by deterring interstate travel and business, by generating medical expenses and by making women less productive economically. Again, the court rejected arguments that these crimes have a substantial effect on interstate commerce, even when aggregated.
Is the mandate closer to Wickard and Raich, or Lopez and Morrison? The Supreme Court might not review the mandate for a year or two. Until then, lower courts are grappling with the nearly 30 lawsuits challenging the Affordable Care Act.
A handful of courts have reached the merits, with some upholding the mandate and some striking it down. Four of these opinions were by appellate courts. This month, the 4th Circuit Court of Appeals dismissed two challenges on procedural grounds. Two other appellate courts ruled on the merits and reached opposite conclusions: In June, the 6th Circuit upheld the mandate, and in August, the 11th Circuit struck it down, creating a "circuit split" that typically precedes Supreme Court review.
Ultimately, the Supreme Court's decision could boil down to whether the justices think health insurance is unique.
Health economists, including three Nobel laureates, emphasize in legal briefs how unique the health insurance market is. The action/inaction distinction doesn't make much sense. Virtually everyone consumes health care at some point and must decide whether to pay for it ahead of time (insurance), on the back end or not at all. The mandate discourages the latter two options, which tend to be expensive and inefficient.
Second, it is important to appreciate how the uninsured affect the insured. For example, healthy young people who go uninsured remove themselves from the insurance risk pool, which raises rates for everyone else in it. And if they do need care, we pay for it. The uninsured also tend to wait longer to seek care, and when they do, it's often expensive emergency care that is subsidized by everyone else.
The decision to go uninsured thus affects who pays and how much in the interstate markets for health care and insurance. It is a quaint notion that health care is still a local concern without national or even international dimensions that require government attention.
Today, the reality is that many activities in our modern economy, whether local or not, affect interstate commerce in some way. If we want our democratically elected representatives to be able tackle modern economic problems of national scale — and health spending certainly is one — then we have to trust our political processes, not just courts.
Politically, it would be absurd to require everyone to buy Chevy trucks or broccoli, which is probably why even states, which aren't constrained by the Commerce Clause, haven't tried. Voters are the safeguard here, which is something the Constitution anticipates.
**** My note: In 1790 the Supreme Court was of little consequence. It decided its first case in 1791 and was not considered an equal in power to the other branches. Its influence only started growing with the Marshall court (1801-1835), when the principle of judicial review was established.
SPECIAL TO THE AMERICAN-STATESMAN
Updated: 8:35 p.m. Saturday, Sept. 17, 2011
Published: 8:24 p.m. Saturday, Sept. 17, 2011
It is hard to overstate the controversy generated by last year's health care reform legislation, the Patient Protection and Affordable Care Act.
Politically, perhaps the most controversial thing President Barack Obama has done in office is sign the legislation. The 2010 midterm elections were cast as a referendum on the law, and it will remain a flash point throughout the 2012 campaigns.
Legally, the controversy swirls around the individual mandate — the requirement that most Americans buy health insurance or pay a penalty. Can the federal government penalize us for not buying health insurance from private companies?
Unlike states, whose constitutions allow them to make us buy auto insurance, or as in Massachusetts, health insurance, the federal government must tether its laws to specific powers enumerated in the U.S. Constitution. State constitutions certainly impose constraints, but not in this way.
In enacting the mandate, Congress relied on two related powers — those addressed in the commerce clause and the necessary and proper clause.
The first allows Congress to regulate commerce "among the several States," under the rationale that we need uniform regulation for interstate industries and that we don't want states discriminating against out-of-state businesses. The necessary and proper clause, as the name suggests, allows Congress to make laws that are "necessary and proper" for executing its other powers.
Since the 1940s, courts have interpreted these clauses broadly.
The commerce clause allows Congress to regulate not only obvious things, such as products sold across state lines, but activities that substantially affect interstate commerce, even if the activities themselves are local and not commercial. The main requirement is that the local, noneconomic activity must be essential to a larger scheme regulating commerce.
The Justice Department is using this argument to defend the mandate. But it need not — health insurance is a unique animal, and the decision to go uninsured is neither purely local nor noneconomic.
Opponents of the mandate disagree. They argue that the Commerce Clause, even when paired with the necessary and proper clause, doesn't allow Congress to regulate inactivity — the choice to be left alone, to take no action if one so chooses. Moreover, the mandate is unprecedented. The federal government has never tried to require action over inaction.
And where would federal powers stop? What makes some uncomfortable about the mandate is the difficulty of identifying a limiting principle. If Congress can require us to buy health insurance, then why not make us buy Chevy trucks to keep General Motors from going bankrupt, or broccoli to boost domestic growers? The strong intuition is that the commerce clause cannot grant Congress the plenary powers reserved for states. If Congress can regulate inaction as part of interstate commerce, is there anything it couldn't regulate?
There are several rebuttals.
First, Congress regulates all kinds of inaction related to commerce. Indeed, the first federal law about health care in 1790**** was a mandate — ship owners had to insure and provide care to merchant seamen.
More importantly, this type of "inaction" has special significance in the health insurance market. In fact, the decision to go uninsured is itself a form of action. The uninsured are actively choosing to pay out of pocket for care, or to let others pay for it.
Everyone needs health care at some point. Nearly two-thirds of the uninsured use one of our most expensive forms of health care (the emergency room) at least once a year. So the decision to go uninsured is not "inactivity" at all; rather, it is a decision about how to finance care that they inevitably will need.
Which argument will persuade a majority of Supreme Court justices? As with most cases, past judicial opinions will shape the outcome. Does the mandate resemble laws that courts upheld under the Commerce Clause? Or does it more closely align with laws that were struck down?
For example, in 1938, Congress passed the Agricultural Adjustment Act, which limited wheat production to stabilize prices during the Great Depression. The law allotted Roscoe Filburn 11 acres, but he grew 12 extra for himself.
The Supreme Court upheld the law in Wickard v. Filburn, even though growing wheat for personal consumption was a local activity and was not itself commercial. If Congress couldn't regulate Filburn's personal consumption, then he and others could reduce their demand for wheat sold on the market, which would thwart the law and destabilize prices.
Another key case is the Supreme Court's 2005 opinion in Gonzalez v. Raich. There, the court considered whether the commerce clause allows Congress to outlaw growing marijuana locally and possessing it for personal medical use.
The court held that the Controlled Substances Act could reach even these local, noneconomic activities. Echoing Wickard, the court in Raich recognized that if Congress couldn't regulate marijuana grown and consumed at home, it would undermine federal efforts to regulate the trade in illicit drugs.
Of course, the commerce clause has limits. In United States v. Lopez, the Supreme Court struck down parts of the Gun Free School Zones Act because it reached too far into local activity (carrying guns near schools) and because its link to interstate commerce was too attenuated. The government claimed that gun violence near schools generates significant expenses, discourages traveling through unsafe areas and makes students less productive, which in aggregate substantially affects interstate commerce. The court disagreed.
In United States v. Morrison, the court used similar reasoning to strike down parts of the Violence Against Women Act, which allowed female victims of violent crimes to file civil suits under federal law. Congress documented that gender-motivated violence affects the national economy in several ways — for example, by deterring interstate travel and business, by generating medical expenses and by making women less productive economically. Again, the court rejected arguments that these crimes have a substantial effect on interstate commerce, even when aggregated.
Is the mandate closer to Wickard and Raich, or Lopez and Morrison? The Supreme Court might not review the mandate for a year or two. Until then, lower courts are grappling with the nearly 30 lawsuits challenging the Affordable Care Act.
A handful of courts have reached the merits, with some upholding the mandate and some striking it down. Four of these opinions were by appellate courts. This month, the 4th Circuit Court of Appeals dismissed two challenges on procedural grounds. Two other appellate courts ruled on the merits and reached opposite conclusions: In June, the 6th Circuit upheld the mandate, and in August, the 11th Circuit struck it down, creating a "circuit split" that typically precedes Supreme Court review.
Ultimately, the Supreme Court's decision could boil down to whether the justices think health insurance is unique.
Health economists, including three Nobel laureates, emphasize in legal briefs how unique the health insurance market is. The action/inaction distinction doesn't make much sense. Virtually everyone consumes health care at some point and must decide whether to pay for it ahead of time (insurance), on the back end or not at all. The mandate discourages the latter two options, which tend to be expensive and inefficient.
Second, it is important to appreciate how the uninsured affect the insured. For example, healthy young people who go uninsured remove themselves from the insurance risk pool, which raises rates for everyone else in it. And if they do need care, we pay for it. The uninsured also tend to wait longer to seek care, and when they do, it's often expensive emergency care that is subsidized by everyone else.
The decision to go uninsured thus affects who pays and how much in the interstate markets for health care and insurance. It is a quaint notion that health care is still a local concern without national or even international dimensions that require government attention.
Today, the reality is that many activities in our modern economy, whether local or not, affect interstate commerce in some way. If we want our democratically elected representatives to be able tackle modern economic problems of national scale — and health spending certainly is one — then we have to trust our political processes, not just courts.
Politically, it would be absurd to require everyone to buy Chevy trucks or broccoli, which is probably why even states, which aren't constrained by the Commerce Clause, haven't tried. Voters are the safeguard here, which is something the Constitution anticipates.
**** My note: In 1790 the Supreme Court was of little consequence. It decided its first case in 1791 and was not considered an equal in power to the other branches. Its influence only started growing with the Marshall court (1801-1835), when the principle of judicial review was established.
Excerpt from United States Court of Appeals, District of Columbia (Republican dominated), upholding ACA (Affordable Care Act, aka "Obamacare")
+ Show Spoiler +
Fulltext: http://www.cadc.uscourts.gov/internet/opinions.nsf/055C0349A6E85D7A8525794200579735/$file/11-5047-1340594.pdf
Bolded section emphasized by user.
We acknowledge some discomfort with the Government’s failure to advance any clear doctrinal principles limiting
congressional mandates that any American purchase any product or service in interstate commerce. But to tell the truth, those limits are not apparent to us, either because the power to require the entry into commerce is symmetrical with the power to prohibit or condition commercial behavior, or because we have not yet perceived a qualitative limitation. That difficulty is troubling, but not fatal, not least because we are interpreting the scope of a long-established constitutional power, not recognizing a new constitutional right. Cf. Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252, 2272 (2009) (Roberts, C.J., dissenting). It suffices for this case to recognize, as noted earlier, that the health insurance market is a rather unique one, both because virtually everyone will enter or affect it, and because the uninsured inflict a disproportionate harm on the rest of the market as a result of their later consumption of health care services.
Appellants’ view that an individual cannot be subject to Commerce Clause regulation absent voluntary, affirmative acts that enter him or her into, or affect, the interstate market expresses a concern for individual liberty that seems more redolent of Due Process Clause arguments. But it has no foundation in the Commerce Clause. The shift to the “substantial effects” doctrine in the early twentieth century recognized the reality that national economic problems are often the result of millions of individuals engaging in behavior that, in isolation, is seemingly unrelated to interstate commerce. See Lopez, 514 U.S. at 555-56. That accepted assumption undermines appellants’ argument; its very premise is that themmagnitude of any one individual’s actions is irrelevant; the only thing that matters is whether the national problem Congress has identified is one that substantially affects interstate commerce. Indeed, in case after case, a version of appellants’ argument–that Congress’s power to regulate national economic problems, even those resulting from the aggregated effects of intrastate activity, only extends to particular individuals if they have also affirmatively engaged in interstate commerce–has been rejected on that basis. See United States v. Wrightwood Dairy Co., 315 U.S. 110, 121 (1942) (surveying cases). Whether any “particular person . . . is, or is not, also engaged in interstate commerce,” the Supreme Court expressly held, is a mere “fortuitous circumstance” that has no bearing on Congress’s power to regulate an injury to interstate commerce. Id.
Wickard is very much in that vein. In Wickard, it mattered not that Filburn’s annual wheat output was trivial in relation to national production. Nor did it matter that Filburn was being penalized for behavior that had only the most tenuous impact on interstate commerce in of itself, since Filburn never intended the wheat to be used for commercial purposes, never sold it, and used it only to sustain his home farm. It was also irrelevant that the wheat quota could compel even those farmers with no intention of selling any wheat, in any market, to enter the interstate market. All that mattered were the overall dynamics of the wheat market–in other words, generalizations about likely, future economic behavior. If farmers like Filburn all exceeded their quotas, the mechanics of the wheat market made it inevitable that the interstate market would be impacted–either by the likelihood that the high price of wheat Congress was trying to maintain would induce some unspecified number of farmers to sell wheat at market after all, or the probability that farmers who had enough wheat for their own use would stop buying wheat at market. Either way, these economic forecasts–and not any affirmative acts by people like Filburn–were enough to sustain the law. 317 U.S. at 117, 126-28.
Cases since Wickard have minimized the significance of any particular individual’s behavior yet further. They have repeatedly confirmed that the actual impact of any one individual’s conduct on interstate commerce is immaterial, so long as a rational basis exists for believing that a congressional enactment, as a whole, substantially relates to interstate commerce. Raich, 545 U.S. at 17-19; Lopez, 514 U.S. at 557. A single individual need not even be engaged in any economic activity–i.e. not participating in any local or interstate market–so long as the individual is engaged in some type of behavior that would undercut a broader economic regulation if left unregulated. Raich, 545 U.S. at 36 (Scalia, J., concurring). And a single individual need not even be engaging in the harmful activity that Congress deems responsible for a national economic problem; it is enough that in general, most do. Thus, when Congress finds that organized crime harms interstate commerce, and that most loan sharks are part of organized crime, Congress can regulate even those individual loan sharks who are not part of organized crime. See Perez v. United States, 402 U.S. 146, 147, 153-57 (1971). Similarly, it is irrelevant that an indeterminate number of healthy, uninsured persons will never consume health care, and will therefore never affect the interstate market. Broad regulation is an inherent feature of Congress’s constitutional authority in this area; to regulate complex, nationwide economic problems is to necessarily deal in generalities. Congress reasonably determined that as a class, the uninsured create market failures; thus, the lack of harm attributable to any particular uninsured individual, like their lack of overt participation in a market, is of no consequence. That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power surely explains why Congress has not used this authority before–but that seems to us a political judgment rather than a recognition of constitutional limitations. It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family.32 The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258-59 (1964). For the foregoing reasons, we affirm the decision of the district court.
Bolded section emphasized by user.
We acknowledge some discomfort with the Government’s failure to advance any clear doctrinal principles limiting
congressional mandates that any American purchase any product or service in interstate commerce. But to tell the truth, those limits are not apparent to us, either because the power to require the entry into commerce is symmetrical with the power to prohibit or condition commercial behavior, or because we have not yet perceived a qualitative limitation. That difficulty is troubling, but not fatal, not least because we are interpreting the scope of a long-established constitutional power, not recognizing a new constitutional right. Cf. Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252, 2272 (2009) (Roberts, C.J., dissenting). It suffices for this case to recognize, as noted earlier, that the health insurance market is a rather unique one, both because virtually everyone will enter or affect it, and because the uninsured inflict a disproportionate harm on the rest of the market as a result of their later consumption of health care services.
Appellants’ view that an individual cannot be subject to Commerce Clause regulation absent voluntary, affirmative acts that enter him or her into, or affect, the interstate market expresses a concern for individual liberty that seems more redolent of Due Process Clause arguments. But it has no foundation in the Commerce Clause. The shift to the “substantial effects” doctrine in the early twentieth century recognized the reality that national economic problems are often the result of millions of individuals engaging in behavior that, in isolation, is seemingly unrelated to interstate commerce. See Lopez, 514 U.S. at 555-56. That accepted assumption undermines appellants’ argument; its very premise is that themmagnitude of any one individual’s actions is irrelevant; the only thing that matters is whether the national problem Congress has identified is one that substantially affects interstate commerce. Indeed, in case after case, a version of appellants’ argument–that Congress’s power to regulate national economic problems, even those resulting from the aggregated effects of intrastate activity, only extends to particular individuals if they have also affirmatively engaged in interstate commerce–has been rejected on that basis. See United States v. Wrightwood Dairy Co., 315 U.S. 110, 121 (1942) (surveying cases). Whether any “particular person . . . is, or is not, also engaged in interstate commerce,” the Supreme Court expressly held, is a mere “fortuitous circumstance” that has no bearing on Congress’s power to regulate an injury to interstate commerce. Id.
Wickard is very much in that vein. In Wickard, it mattered not that Filburn’s annual wheat output was trivial in relation to national production. Nor did it matter that Filburn was being penalized for behavior that had only the most tenuous impact on interstate commerce in of itself, since Filburn never intended the wheat to be used for commercial purposes, never sold it, and used it only to sustain his home farm. It was also irrelevant that the wheat quota could compel even those farmers with no intention of selling any wheat, in any market, to enter the interstate market. All that mattered were the overall dynamics of the wheat market–in other words, generalizations about likely, future economic behavior. If farmers like Filburn all exceeded their quotas, the mechanics of the wheat market made it inevitable that the interstate market would be impacted–either by the likelihood that the high price of wheat Congress was trying to maintain would induce some unspecified number of farmers to sell wheat at market after all, or the probability that farmers who had enough wheat for their own use would stop buying wheat at market. Either way, these economic forecasts–and not any affirmative acts by people like Filburn–were enough to sustain the law. 317 U.S. at 117, 126-28.
Cases since Wickard have minimized the significance of any particular individual’s behavior yet further. They have repeatedly confirmed that the actual impact of any one individual’s conduct on interstate commerce is immaterial, so long as a rational basis exists for believing that a congressional enactment, as a whole, substantially relates to interstate commerce. Raich, 545 U.S. at 17-19; Lopez, 514 U.S. at 557. A single individual need not even be engaged in any economic activity–i.e. not participating in any local or interstate market–so long as the individual is engaged in some type of behavior that would undercut a broader economic regulation if left unregulated. Raich, 545 U.S. at 36 (Scalia, J., concurring). And a single individual need not even be engaging in the harmful activity that Congress deems responsible for a national economic problem; it is enough that in general, most do. Thus, when Congress finds that organized crime harms interstate commerce, and that most loan sharks are part of organized crime, Congress can regulate even those individual loan sharks who are not part of organized crime. See Perez v. United States, 402 U.S. 146, 147, 153-57 (1971). Similarly, it is irrelevant that an indeterminate number of healthy, uninsured persons will never consume health care, and will therefore never affect the interstate market. Broad regulation is an inherent feature of Congress’s constitutional authority in this area; to regulate complex, nationwide economic problems is to necessarily deal in generalities. Congress reasonably determined that as a class, the uninsured create market failures; thus, the lack of harm attributable to any particular uninsured individual, like their lack of overt participation in a market, is of no consequence. That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power surely explains why Congress has not used this authority before–but that seems to us a political judgment rather than a recognition of constitutional limitations. It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family.32 The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258-59 (1964). For the foregoing reasons, we affirm the decision of the district court.
Debate between professors at Harvard Law School about this case: http://www.law.harvard.edu/news/spotlight/constitutional-law/is-obama-health-care-reform-constitutional.html?utm_campaign=socialflow&utm_source=twitter&utm_medium=social
Initially when Obamacare was passed, it was expected that it would be brought to court, and eventually to the Supreme Court, but expectations were that it would be a rather quickly decided case, with the law being upheld. However, Florida v. United States Department of Health and Human Services changed that when US District Judge Robert Vinson ruled that the individualized mandate in Obamacare falls outside federal authority as outlined in the Constitution. His arguments are reflected in the opinion piece by Rivkin and Casey above. The Supreme Court case is now expected to be decided 5-4.
In short, there are 3 summary points which are important concerning the plaintiffs' case.
1) There is a distinction between group and individual mandates, with the latter being reserved for the states. Thus you see that when immunizations are mandatory, those mandates are given at the state level as opposed to the federal level. Similarly, other individual mandates like drivers' licenses are also done at the state level.
2) Gonzales v. Raich allowed the federal government to criminalize homegrown cannabis even if the grower has a license within a state to grow it for medical purposes. One might consider this an individual mandate, but the decision was tied to the commerce clause, with emphasis that homegrown cannabis is only a step removed from the interstate highways. Thus it is the substance that is being regulated, rather than the individual, and so is not an individual mandate.
3) Obamacare is seen to step over this bound and place a mandate on the individual. It is difficult to say that Obamacare is regulating anything but individuals, since essentially it is inactivity (not having healthcare) that is being criminalized, thus it is unlikely that there is a regulated substance of some sort in play. Instead we have an individual mandate, and that traditionally has been upheld to be beyond the powers of the federal congress, namely Congress.
In defense, the point which much of the argument revolves around - whether an individual mandate forcing activity is constitutionally backed by the Commerce Clause or other dormant, necessary, or proper clauses related to its execution, is answered in the affirmative. While it is admitted that there is little or no precedent similar to the case in hand, it is argued that there is no real distinction between the regulation of inactivity or activity in the Constitution. Alternatively, it may also be argued, alone or in conjunction with the previous statement, that healthcare is a uniquely special field in that nearly all people will eventually enter into it. The reason for the lack of precedence is not a constitutional one, but rather a political one, as the quite obvious unease which can be found in the act's prescriptions demonstrates.
One thing should be kept clear - it is agreed that it is not unconstitutional for the government to implement a nationwide healthcare plan wherein all citizens contribute. However, the most obviously constitutional method for this to be done is in the form of taxation, where there is currently no political will to do so. It is the method which is under attack under constitutional grounds, not necessarily the end result.
I'll be watching this case with a good bit of curiosity. My friend who is a med student says that Obamacare is great, and his colleagues at the university love it. On the other hand, might it be unconstitutional for the federal government to create such a law, even if it is good?
