Imagine an America in which Congress could order every citizen to buy a gym membership at a government approved facility, solar panels for your home, a monthly allotment of fruits and vegetables, a new General Motors car, burial insurance, mortgage insurance, and credit card insurance. Imagine an America in which Congress could enforce these mandates under penalty of law, with fines and even imprisonment.
This is the America our Founding Fathers worked diligently to prevent. In drafting the Constitution, the Founders granted certain enumerated powers, among them, the power to "regulate Commerce ... among the several States ..."
Congress cited the Commerce Clause as its constitutional authority for passing the Affordable Care Act (“ACA”). The Act requires every American to purchase an approved health insurance plan, under penalty of law. The federal government had never before required people to buy any good or service as a condition of lawful residence in the U.S. Just because the legislation is unprecedented does not by itself render it unconstitutional. That being said, the fact that Congress had never thought to exercise such authority over the past two centuries cannot be ignored.
Congressional power under the Commerce Clause has greatly expanded over time. The Supreme Court has held that Congress may regulate the exchange of goods across state lines, and transportation linked to such exchanges. Congress may also regulate non-commercial economic activity that has a substantial aggregate effect on interstate commerce.
Proponents of the ACA claim the decision not to buy health insurance is economic activity having an effect on the health insurance market. Before the Act was passed, Congress’ attorneys in the Congressional Research Service advised that it was "unclear" whether the individual mandate had "solid constitutional foundation," finding that the individual mandate "could be imposed on some individuals who engage in virtually no economic activity whatsoever."
Undeniably, being without health insurance has no impact on interstate commerce. Only when an uninsured individual seeks healthcare and then refuses to pay for the services rendered is there arguably an effect on interstate commerce. There is virtually no decision one can make which has no economic impact, particularly in the aggregate. If Congress were permitted to regulate thought processes (i.e. the decision to forego buying health insurance), there would be virtually no limit to federal power under the Commerce Clause. For this reason, the individual mandate is beyond the power bestowed upon Congress in the Commerce Clause.
It has also been argued that the individual mandate is authorized under Congress’ power to tax. Congress has the power to tax to raise revenue in support of the specifically enumerated powers. Remarkably, President Barack Obama himself argued that the individual mandate was not a tax, and the Act itself describes the fee for non-compliance as a "penalty." Any revenue generated secondary to the mandate penalty is purely incidental. If the penalty for non-compliance were to achieve the desired result, no revenue would be generated. Congress’ power to exact a penalty is more constrained than its taxing authority because it must be in aid of an enumerated power (Sunshine Anthracite Coal Co. v. Adkins (1940)). Congress cannot regulate through taxation that which it cannot otherwise regulate (Bailey v. Drexel Furniture (1936)). Since Congress does not have the power to regulate inactivity, it also lacks the power to penalize individuals for the very same inactivity.
Finally, proponents of the ACA have argued that the individual mandate is valid under the Necessary and Proper Clause, which provides that Congress shall have the power: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers ..." The Supreme Court has repeatedly held that the Clause is not an independent source of federal power; rather, it is simply "a caveat that the Congress possesses all the means necessary to carry out the specifically granted 'foregoing' powers of [Section] 8 ...” (Kinsella v. U.S. (1960)). The Necessary and Proper Clause cannot be used to enforce an unconstitutional exercise of power. As indicated above, the mandate is beyond the scope of the enumerated powers.
In the end, the ACA is well intentioned, but unconstitutional. "The Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day ... [A] judiciary that licensed extra-constitutional government with each issue of comparable gravity would, in the long run, be far worse [than the crisis itself]." (New York v. United States (1992)).
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