The Patient Protection and Affordable Care Act (ACA), known informally as health care reform, is a 906 page bill likely to be codified into thousands of pages of rules and regulations in each state. Those metrics are important to note because it situates a context around the component of the bill currently under legal scrutiny in courts. Section 1501, also known as the Individual Mandate, comprises all of 9 pages in the Act and calls for nearly all Americans to secure the minimum essential health insurance coverage beginning in 2014.
Challenges to the constitutionality of the ACA (such as the one presented in amicus curiae to the Supreme Court) question the Section 1501 on two levels: First, that the Individual Mandate violates the Enumerated Powers of Congress via the Commerce Clause in Article I, Section 8. Second, because the Individual Mandate cannot be severed from the ACA, it follows that the entire ACA must be held unconstitutional.
Let me handle each of these concerns in turn.
First, the Individual Mandate is not unconstitutional. Those challenging the Individual Mandate allege that Congress can only exercise the power to regulate interstate commerce if, and only if, they are operating on people currently within the market – people termed "actives." Opponents of the ACA argue that Section 1501 unlawfully brings "inactives" – people who are not currently participating in the health care market – into the market and under their purview. However, a Reagan-appointed Court of Appeals judge in the Washington D.C. district recently found no reason to presume a distinction between "actives" and "inactives" when considering the reach of the Commerce Clause. In particular, Judge Laurence Silberman wrote in his decision that Article I, § 8, cl. 3 confirms the power of Congress to "regulate" as a mechanism to require action beyond currently existing commerce.
Second, even if the Individual Mandate were unconstitutional, the ACA can still help tens of millions of people without it. Let's assume for a moment that a injudicious judge found Section 1501 unconstitutional. Does this mean we must scrap the other 897 pages? Before you begin folding origami out of recycled legislation, consider that Judge Natalie Hudson of the Minnesota Court of Appeals found health care reform fully workable without the Individual Mandate and Judge Christopher Conner of the Third Circuit Court of Appeals found the ACA workable without the Individual Mandate and two related provisions. Not only is it legally severable, but an ACA without Section 1501 still provides practical benefits. The Health Affairs journal of November 2011 released a study calculating that the ACA would still cover 23 million without the Individual Mandate – and premiums would not skyrocket as a result.
As you are navigating the legalese of health care reform's constitutionality, it's important to remember the substance to this issue. Should health care reform be implemented and become fully functional in 2014, 32 million currently uninsured Americans will get access to health care. Ultimately, the legal judo is outweighed by human need.
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