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NEJM on the constitutionality of the mandate

A word about the question: "Is it Constitutional?" One answer to this question is: "We won't know until the Supreme Court tells us what the law is." But there's no reason, after Scalia skewed the nomination process his way in Bush v. Gore, to regard the Supreme Court as anything other than another gaggle of lawyers with abnormally large briefcases. In other words, I care about what we think the Constitution means to us in the current dispute right now, and I don't care about reading the tea leaves about what the Court, even assuming the Court to be legitimate, might rule in the future. Does anybody here really think that the Roberts Court has any regard for "settled law"? No? Well, then why should we? And if, to a lawyer, my thoughts on these topics call to mind a baby juggling with power tools, so be it! Single payer advocates called bullshit on this aspect of HCR very early, and were, as in so much else, prematurely correct. And if some on the right are strange bedfellows on this, then again, so be it.

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That said, here's the New England Journal of Medicine (NEJM) on why the mandate is an open issue, constitutionally. Caveat: I'm pulling through the arguments I believe are true or at least interesting, so my quoting is tendentious!

Can Congress Make You Buy Broccoli? And Why That’s a Hard Question

The ACA was designed both to provide an affordable means of financing health care for all Americans and to preserve the private, commercial health insurance industry [hence the shunning and suppression of "little single payer advocates" by the press, both legacy parties, career "progressives," and Obama].This latter goal is the source of conflict. ...

The controversy is whether Congress can require 30 million uninsured Americans to obtain coverage in order to spread the risk, reduce insurance costs, and preserve the private insurance market. Congress has never required anyone to buy a product from private industry. This is the first reason the question is so hard.

To head off the "automobile insurance" argument, Congress hasn't required it. To head off the "Medicare is required" argument, that's a proper use of taxing power.

The second reason is that answering the question requires predicting the Supreme Court’s interpretation of the scope of the Commerce Clause, and its recent decisions on this issue offer little guidance. ... The fact that the Court has recently issued both narrow and expansive readings of the Commerce Clause makes it almost impossible to predict how it will view the requirements of [HCR's mandate]. ....

The third and most important reason the question is so hard is that it’s difficult to decide whether not having insurance coverage qualifies as an activity that affects interstate commerce. ACA opponents argue that Congress has no authority to penalize people for inactivity — for not buying a product. ....

The Obama administration argues (and two other lower courts in Virginia and Michigan agreed) that the failure to purchase something is an economic decision with potentially broad economic consequences — a dynamic much in evidence during the current recession. Therefore, decisions not to buy a product should count as economic activity affecting interstate commerce. Yet this argument may prove too much. .... If the Obama administration is to prevail, it must provide a persuasive limiting principle to convince the Supreme Court that ruling in favor of the individual mandate would not create a precedent for unlimited federal authority to require citizens to buy goods from private sellers to sustain important industries.

The "persuasive limiting principle" is the "bright line" I sought before. Once again, there's no particular reason to trust the Roberts court to draw it; what we need to do is set up a metric now so that when they do draw it, we can evaluate the outcome. (NOTE: That principle or bright line doesn't have to be policy based, and probably should not be. If what is coming into being with the mandate is a new Constitutional Order, then our thoughts need to be scaled to that scope.)

The limiting principle the administration proposes is that health care is unique because everyone will require health care at some point in life, whereas not everyone will “require” a car. Since people cannot opt out of the need for health care, they should not be permitted to opt out of the insurance to pay for it. If the Court concludes that health care is unique, it can uphold the ACA without setting a precedent to expand federal power beyond health insurance reform. The administration could argue that this circumstance renders the ACA litigation similar to that in Bush v. Gore, which the Court ruled set no precedent. The Court has kept its word by never citing that case in any subsequent decision.

Just... Wow. A decision on the mandate that's as legitimate as Bush v. Gore. That would really be something to behold, eh? Talk about a change in the Constitutional order...

The uniqueness argument, however, is not so easy to make — which is the fourth reason the question is hard. All people need food and water, but the government does not require people to buy insurance to pay for these necessities in case they can’t do so in the future. So the fact that everyone will need and voluntarily seek health services may not be sufficient to justify requiring people to obtain insurance. The Obama administration responds that virtually all people do get care, whether they pay for it or not, so they should contribute to its cost through insurance, and insurance would be too costly if healthy people were not in the pool. Yet if the federal government can require people to buy insurance in order to keep premiums affordable, could it also require people to buy baby aspirin or a gym membership to keep those premiums affordable, on the theory that using these products reduces the use of health care services and thus insurance costs?


Since our state is a rentier state, and the only reason that the health insurance companies exist is to extract rent, a positive outcome for the mandate will "open the floodgates" for other rents to be mandated. (A small example: Forcing the unemployed to use ATM cards, with their accompanying fees, which are rents.)

From a policy standpoint, that would be bad. From a Constitutional standpoint, I think it's even more horrific. How could such a Constitutional order be said to "promote the general welfare"? Those are the stakes.

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Historiann's picture
Submitted by Historiann on

Thanks for finding and commenting on this, Lambert. It's really smart, concise, and full of crunchy specifics.

beowulf's picture
Submitted by beowulf on

As the article notes, Medicare (and Medicare taxes) have been ruled constitutional exercises of Congress's spending and taxing powers. That there's an existing government program that both remedies the wrong targeted by the bill and has already been found constitutional is what doom the individual mandate. Since there's a way to address the problem without judicially amending the Constitution, the Supreme Court, in my view, won't hesitate to kick it back to Congress's lap.

If the Administration tried to make the argument for an unprecedented expansion of congressional Commerce Power jurisdiction because of some "persuasive limiting principle" like the need for health care, it would only set up Chief Justice Roberts to ask, "And Medicare doesn't work why"?

NEAL KATYAL, DEPUTY SOLICITOR GENERAL: ...There was a failed quorum — a failed cloture vote in February. And so all three nominations are pending. And I think that underscores the general contentious nature of the appointment process with respect to this set of issues.

CHIEF JUSTICE ROBERTS: And the recess appointment power doesn’t work why?