Individual Health Insurance Mandate is Not a Difficult Constitutional Question

The constitutional challenge to the 2010 Affordable Care Act (ACA) draws much of its rhetorical force not from the Commerce Clause, but from the perception that the insurance mandate infringes on individuals’ private liberties.

Taken alone, the libertarian argument that the government cannot order private citizens into a healthcare insurance contract with a third-party is something of a legal nonstarter. Such a private liberty claim would have to be brought under the 14th Amendment. Were that issue even before the Court, it would almost certainly fail. The Supreme Court essentially stopped recognizing economic rights under the 14th Amendment guarantee of substantive due process in the late 1930s. This liberty-based concern might be the more authentic motivation behind the challengers’ lawsuits, but it’s largely a policy argument that belongs in the political realm.

With respect to the Commerce Clause — the challenge actu­ally before the Court — the relevant question is whether the individual mandate exceeds Congress’ ability to regulate interstate commerce. The Supreme Court has made clear on several occasions, including recently in the 2005 Gonzales v. Raich decision upholding a federal ban on homegrown marijuana, that Congress’ power extends to activities that “substantially affect interstate commerce.” By some estimates, health care spending in the United States exceeds $2.7 trillion dollars, constituting over 17% of the American economy. Regardless of how one feels with respect to the individual liberty arguments, the mandate’s impact on interstate commerce is enormous.

There is little disputing that an individual’s decision whether or not to participate in America’s private insurance market shifts costs onto other taxpayers and affects the cost of insurance and other medical services. Indeed, this capacity to pool individual spending preferences is the risk-spreading mechanism that insurance is premised on, and this is precisely why Congress determined that the mandate was necessary to the ACA. The Court has previously made clear that insurance transactions fall squarely within Congress’ reach, when it said in U.S. v. South-Eastern Underwriters Association that, “Insurance touches the home, the family, and the occupation or the business of almost every person in the United States.”

Political opponents of the ACA have made much of the argument that Congress may only regulate commercial “activity” and not “inactivity” such as a refusal to purchase health insurance. This activity/inactivity distinction, besides having no precedent in the Court’s jurisprudence, is illusory. Just as former Court decisions failed to draw a clear line between “commercial” and “non-commercial” activities, this distinction looks more like a convenient framing device than a workable constitutional standard.

Past Justices have exercised tremendous discretion and sensitivity when addressing issues that portend political reverberations that might undermine the Court’s institutional legitimacy. Whatever opinion the Roberts Court ultimately issues, I am sure it will be written with such considerations informing every line. A politically unaccountable Court overturning majority-supported legislation without constitutional basis is a more nefarious form of government overreaching than anything accomplished by the healthcare act.

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