Supreme Court Justices Would Be Silly to Strike Down the Individual Mandate

Barack Obama, the poor sap, thought that he could get health care reform passed by just adopting the Republican proposal: Instead of creating a massive new government health care bureaucracy – something like what we already have with Social Security – we’ll contract with the private sector to deliver health care to all these uninsured people. A prescription for bipartisan consensus and changing the tone of Washington, right? Imagine his surprise when he was told that Social Security-type Big Government is perfectly acceptable – none of the challengers want to challenge Social Security, which is another kind of government-mandated insurance – but this Smaller Government is monstrous tyranny.

The Patient Protection and Affordable Care Act of 2010 includes a “mandate,” which deducts a penalty from the tax refunds of persons who go without health insurance. The health-care law forbids insurance companies from discriminating against people with preexisting medical conditions – people who, before the law, could not get affordable insurance. The mandate is necessary for making this provision effective. Without the mandate, the law’s protection of people with preexisting conditions would mean that healthy people could wait until they get sick to buy insurance. Because insurance pools rely on cross-subsidization of sick people by healthy participants, that would bankrupt the entire health insurance system. (This happened in seven states that tried to protect people with pre-existing conditions without mandating coverage for everyone. The results ranged from huge premium increases to the complete collapse of the market.)

The Administration defends the mandate under several provisions. Article I, section 8 of the Constitution empowers Congress to “regulate Commerce . . . among the several states.” Under settled precedent, some of it nearly 200 years old, Congress may regulate activity that has a substantial effect on interstate commerce. As recently as 2005, the Supreme Court held that Congress may regulate local, non-economic behavior when such regulation is “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.”  On this basis, the Court held in 1944 that Congress could regulate insurance. 

In its defense of the health-care law, the administration will likely point out that Article I ends with an authorization for Congress to “make all Laws which shall be necessary and proper” to carry out its responsibilities. This, the Court held in 1819, allows Congress to choose any convenient means, even if they are not part of the power itself. Thus, for example, the power to operate a post office authorizes Congress to criminalize mail robbery, and to build and operate federal prisons to hold mail robbers. Likewise, the Obama administration will argue, the need to regulate health insurance authorizes Congress to group people together into large risk pools, as it already does with Social Security.  (Social Security insures against destitution in old age; the ACA insures against illness; the biggest difference between them is that the latter relies heavily on the private sector.)  Congress also has a general power to “collect Taxes” to provide for the “general Welfare of the United States.”

The challenge for opponents of the mandate is to show why it is not authorized by these provisions.  They argue that, while Congress can regulate economic activity, the decision to not buy health insurance is economic inactivity: Persons who do not buy health insurance are not participating in interstate commerce and are therefore protected from Congress’s reach. They also claim that the Necessary and Proper Clause cannot be used to remedy a problem that Congress itself created (the problem, in this case, being the ban on discrimination based on pre-existing conditions, without which there would be no need for the mandate as a remedy). They argue, too, that the provision is not a tax, because some of the law’s sponsors sometimes claimed that it was not, and because the statute did not say that it was a tax.

All these claims rest on premises that are invented for the occasion – rules that have never before been seen in Constitutional law. A court inclined to just apply existing law, the law that Congress was entitled to rely on when it passed the Act, would dismiss them summarily. With respect to the taxing power, for instance, the Supreme Court said in 1948 that “[t]he question of the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise.”  The Court might adopt new limits, but the implications could scare the justices. For instance, the challengers argue in their brief that the law “usurps the States’ police power to protect the health and liberty of their residents.” This would jeopardize not only Obama’s law, but also Medicare, Medicaid, federal hospital and drug regulations, and hundreds of other federal laws. And the idea that we have a right not to insure ourselves means that Social Security and Medicare are unconstitutional as well.

The Court will not, of course, strike down these programs. A decision invalidating the mandate would rest on principles that the Court has no intention of adopting in any other case, just to reach a result it likes. Because no broader principles are being adopted, there’s nothing at stake beyond the chance to stick a pin in Obama – in a way that is likely to have a devastating effect on the very large number of people with preexisting conditions who were going to get affordable medical insurance as a consequence of the legislation, and who now won’t. This would be raw partisanship for its own sake, with horrendous collateral damage to people who aren’t even Obama partisans. I wish I could be confident that the Court will not do something so despicable.

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Andrew Koppelman

Andrew Koppelman is John Paul Stevens Professor of Law and Professor of Political Science at Northwestern University. His scholarship focuses on issues at the intersection of law and political philosophy. He is the author of Religious Neutrality in American Law (Harvard University Press, forthcoming 2012), A Right to Discriminate? How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (with Tobias Barrington Wolff, Yale University Press, 2009), Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press, 2006), The Gay Rights Question in Contemporary American Law (University of Chicago Press, 2002), Antidiscrimination Law and Social Equality (Yale University Press, 1996), which won a Myers Center Award, and more than 60 articles in books and scholarly journals. His article, Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform, is the most viewed article in the history of the Yale Law Journal Online (over 100,000 hits in the first month of posting). He is also an occasional contributor to the Balkinization blog.

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