This week, the Supreme Court will hear the most important case in decades. At issue is whether the federal Patient Protection and Affordable Care Act (the “PPACA” ) and, in particular, its provision requiring virtually all Americans to purchase Health Insurance from private carriers (the “Individual Mandate”) is permitted by the United States Constitution.
The Court, recognizing the importance of the case, has spread arguments out over three days, something unprecedented in recent years. When the PPACA was passed, its most jubilant supporter, then Speaker Nancy Pelosi, was asked if there was a question about the PPACA’s constitutionality, and she replied, “Are you serious? Are you serious?” Her attitude appears to be shared by most in the elite reaches of the legal academy, some of whom, like Laurence Tribe of Harvard, have predicted the Court will uphold the Act by a lopsided majority. Even two of the most respected conservative Court of Appeals judges have rendered decisions upholding the Act, stating that the Court’s prior precedent left them no choice.
And true it is that since 1937, following the vaunted “switch in time that saved Nine,” the Court has generally upheld Congressional measures seeking to regulate interstate commerce, even going so far in the important Wickard v. Filburn and Gonzalez v. Raich cases, to state that Congress had the power to regulate items grown for home consumption, even if they were never to be sold in interstate commerce. This was because if they weren’t grown at home, their growers might have to participate in interstate commerce to secure them.
Since health care makes up approximately 1/6 of the national economy, say the PPACA’s defenders, and the PPACA is simply an effort to regularize and make affordable health care for all Americans, there should be no problem with seeing the Individual Mandate as a legitimate regulation of interstate commerce. And yet, the case does represent an attempt, by Congress, for the very first time, to require participation in interstate commerce by individuals, justified as a regulation of interstate commerce. And there are some Supreme Court precedents pointing the other way. U.S. v. Lopez held that the federal government did not have, under the Commerce Clause, power to bar firearms from within 1000 feet of schools and U.S. v. Morrison, stated, similarly, that the Commerce Clause could not be invoked to give the federal government power to punish all violence against women.
In the several lower federal court decisions finding the PPACA to be unconstitutional, judges have read Lopez and Morrison to establish two principles, both of which are rooted in the Tenth Amendment. These are 1) There must be some limits to federal authority; and 2) The police power – the plenary power to regulate conduct must rest with the states.
Elite legal opinion may believe the PPACA is constitutional, but if the Court finds it to be so, there is nothing Congress may not do, and there is nothing left of the Tenth Amendment.