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Day Two: Is the Mandate Constitutional?

The opinions expressed by columnists are their own and do not necessarily represent the views of

And now, for the main event.

Today, the Court tackles the individual mandate, and whether Congress has taken a step too far by enacting it. The question is basic: Is the individual mandate constitutional? The consequences are heady. Whichever way the Court decides will have a critical effect on the scope of Congress’ power – and possibly, our freedom.

What’s At Stake?

The individual mandate – or, as the federal government will call it, the “minimum coverage provision” – has been under fire ever since the inception of the Patient Protection and Affordable Care Act, in 2009. The political Left argues that a mandate is absolutely necessary in order to address our country’s dire healthcare situation: poor “free riders” seeking and receiving care under the Emergency Medical Treatment and Active Labor Act, which in turn drives up both taxes and the cost of insurance premiums. Besides, they argue, healthcare is a necessity, which everyone will need, and thus ought to have. The mandate simply prods the uninsured to do what’s best, both for themselves and in turn, the country at large. The Right, on the other hand, opposes the mandate on the grounds that it’s a total violation of freedom, that it will not succeed in reducing the overall cost of insurance, and what’s more, that down the line, it will result in socialized, government-sponsored healthcare programs rife with rationing and lines for doctors.

Of course, the Court isn’t supposed to address the political concerns attached to the healthcare issue (nevemind the speculation that it does). Instead, its main concern is determining whether Congress has overstepped its bounds, and does the Court need to check that power?

When Congress passed the PPACA, it justified the individual mandate using the Commerce Clause, which reads, “The Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” It’s one of the most frequently exercised powers, the cornerstone of hundreds bills passing through Congress each year. In this case, Congress has classified the decision to remain uninsured as one which “substantially affects” interstate commerce, and thus subject to regulation under the commerce clause.

The Court’s job, then, is to rule on whether abstention from the market constitutes “regulatable” behavior. If the Justices find the mandate constitutional, then it will grant Congress the power to compel an individual to participate in the market. Critics argue that such a ruling would allow Congress to exert control over an individual in an unprecedented and dangerous way, one that could degenerate into a slippery slope of increasingly tyrannical regulation. Proponents say that such fears are hyperbolic; healthcare is unique, and the mandate is necessary to stabilize healthcare, and ultimately, the economy.

Solicitor General Donald Verrilli will represent the Obama administration, arguing for constitutionality. Paul Clement will represent the states, arguing that it’s not, while Michael Carvin will represent the National Federation of Independent Business, augmenting the unconstitutionality argument.

Affirmative: The Mandate Is Constitutional

The Solicitor General will argue that the interstate commerce clause grants Congress the power to compel health insurance purchases, owing to the immediate effect that remaining uninsured has on the economy. Under this logic, there is no distinction between commercial “activity” and “inactivity.” The choice to be inactive has consequences far beyond simply not owning health insurance.

Giving legs to this argument is the claim that “free riders” in the healthcare system – such as the uninsured who seek emergency medical treatment under EMTALA – shift $43 billion per year to the rest of the country. The uninsured, the government contends, generate higher taxes to cover the cost of their care, and in turn, drive up individual family insurance premiums. The supposed “inactivity” of owning health insurance, therefore, is a decision that affects the nation at large, and causes the federal government enough of a financial burden that it has the right to regulate it.

The government will apply precedent set in Wickard v. Filburn, a case decided in the New Deal era that significantly broadened the government’s powers under the commerce clause. Roscoe Filburn was a wheat farmer, whose farm exceeded a production quota set by the government during the Great Depression. He contended that the extra wheat was intended for his own private consumption, and not for commercial purposes; therefore, the government had no right to regulate it. However, the Court held that his own private wheat stash precluded his own participation in the commercial market, thereby “substantially affecting” interstate commerce. He was in violation of the law, and Congress was well within its Commerce Clause rights to regulate his private wheat consumption.

Using this logic, the private decisions one citizen makes can have enough of an impact on the economy at large that Congress may regulate those decisions. The government will argue that healthcare is one such case in which an individual’s decision has a substantial and indeed, detrimental effect on the economy. Congress, then, has the right to regulate that decision.

While the Commerce Clause is the primary justification for the mandate, the government will also rely on the Necessary and Proper clause, which says that Congress may “make all laws which shall be necessary and proper for carrying into execution the foregoing powers…” This argument will rely on the theory that the Constitution must adjust to the times. Back in the Framers’ day, healthcare meant apothecaries, bloodletting, and wooden teeth; these days, it comprises 20% of our national economy. The Necessary and Proper clause is vague and broad intentionally so as to allow Congress to address problems in the national interest as they arise. The mandate is a “necessary and proper” solution to one such national problem, they say. It ought to stand.

Negative: The Mandate Is Not Constitutional

Not so fast, the states and private parties will say. Congress can’t just seize this broad, unlimited power for the sake of “the national interest,” while assuring us all that healthcare is “special.” Who’s to say something else won’t be special someday? No, there must be a limit to Congress’ power, and the buck stops here.

Randy Barnett, a professor at Georgetown University Law Center and occasional advocate in the Supreme Court, laid out a concise case against the mandate during a talk at the Cato Institute last week. He gave four reasons for the mandate’s unconstitutionality, the model off which Mr. Clement and Mr. Carvin will work.

1) Unprecedented: Congress has never tried to claim this power before, the power to force individuals into business contracts. Nowhere does any document grant Congress the power to do so, and while that doesn’t automatically make it unconstitutional, Justice Scalia has written a most prescient opinion on this matter. He says, “If for 200 years a power this attractive has gone unused by Congress, that’s a pretty good argument that the power does not exist.” One such argument is this: instead of pumping millions of tax dollars into GM, why didn’t the government instead force us all to save the auto industry by purchasing cars or stock in the company? How different, then, is the mandate?

2) Uncabined: This is law-speak for unlimited. Interestingly, the government hasn’t been able to name a single limiting principle to this power when it’s been put on the spot. Who’s to say they can’t force us to buy other things? If Congress decides it’s in the national economic and environmental interest for all of us to drive Chevy Volts, can it issue a mandate to that end? The defense against this point is, of course, that healthcare is "different," since everyone in his or her lifetime will require some such service. But the fact that healthcare is an apparent exception to the rule doesn’t mean the mandate power has a constitutional limit. The Court may not consider a factual inquiry such as this, but it’s worth noting that the power has no visible constitutional check.

Indeed, this particular quote from the state's brief illustrates the problem with the "aggregated" or "substantially effects" theory the federal government relies on: "The federal government argues that the decision NOT to purchase health insurance has, in the aggregate, a substantial effect on the national economy, and therefore interstate commerce. However, the Court of Appeals struck down this premise: 'The court found that theory ‘limitless,’ observing that, ‘[g]iven the economic reality of our national marketplace, any person’s decision not to purchase a good would, when aggregated, substantially affect the interstate commerce.'"

3) Unnecessary: Congress didn’t seek every recourse besides a mandate to solve the national healthcare crisis; for example they could have raised taxes for the purpose of putting the funds toward the supposed $43 billion spent on indigent healthcare. Raising taxes, however, is politically unpopular (and for the record, it’s speculated that’s why Congress didn't call the mandate penalty a "tax"). This argument basically says that Congress should try other means of solving the problem without exercising constitutionally questionable power.

4) Dangerous: This is an extension of the unlimited argument. Basically, choosing to enact a mandate, enforced by a penalty, could quickly spin out of control. When Congress incentivizes behavior (the primary example being Cash for Clunkers), the only consequence is foregoing a benefit, financial or otherwise. When Congress says, "Do this or else," and means it punitively, the "or else" could eventually become a more serious consequence, such as prison. If, down the line, Congress finds that the financial penalty isn’t sufficient to induce a certain behavior (i.e. purchasing health insurance), who’s to say they won’t start jailing violators?

How Will They Rule?

This is the question of the hour. And it really is hard to say – there are precedents attached to several judges that seem to indicate they may rule either way. The most likely scenario is that the decision will be 5-4, with Justice Kennedy, as he often is, serving as the swing vote. Ultimately, the Justices will have to weigh compelling national interest against the potential for abuse of power. Tomorrow, we’ll see which points they push the most, and try to determine what factors will influence their final decision. 

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