By Ian Bartrum, assistant professor of law, Drake University Law School. Professor Bartrum teaches constitutional law, law and religion, and constitutional theory. He has also taught at Vermont Law School, and has served as the Irving Ribicoff Fellow at Yale Law School. This post is part of an ACSblog symposium marking the one-year anniversary of the Affordable Care Act.
On the first anniversary of the Patient Protection and Affordable Care Act, Republicans continue to push the judiciary to intervene and revisit a debate they lost in the political branches. At this writing, five District Court judges have weighed in on the constitutionality of the Act: three have found it constitutional and two have not. In the meantime, the argument rages in state legislatures, policy think tanks, and the legal academy. The majority of legal experts, including as esteemed and nonpartisan a scholar as Yale's Akhil Amar, have concluded that the law passes constitutional muster. But other more conservative scholars have disagreed.
The primary constitutional question centers on the provision known as the "individual mandate." That provision requires those without health coverage through their jobs, who are above the federal poverty line, either to buy a minimum level of health insurance -- at a rate not more than 8 percent of their monthly income -- or to pay a penalty of either $695 or 2.5 percent of income (whichever is higher). So in practical terms, the mandate is not all that onerous; but it is critically important. Because the law prevents insurers from discriminating against people based on preexisting conditions, it must ensure that people do not simply wait until they get sick to buy coverage -- if everyone did that, insurance would be impossible. But it's clearly not the practical effect that matters to health care opponents; it's the principle at stake. The Constitution, they say, does not allow the federal government to intrude this far into our lives.
In particular, opponents say the mandate exceeds Congress's authority to regulate interstate commerce. The objections are of two kinds. First, scholars such as Georgetown's Randy Barnett argue that what Congress is regulating is not commerce. Second, pundits like the Cato Institute's Timothy Sandefur have argued that the mandate is not a regulation of commerce. Neither position stands up to serious scrutiny.