Opponents of Health Care Law Rely on Wobbly Federalism Argument for a Reason

by Jeremy Leaming

Opponents of the Affordable Care Act’s provision that requires people who can afford it to obtain minimum health insurance coverage or pay a penalty with their annual income tax return have loudly argued that it upsets the balance between the regulatory powers of the federal government and state governments.

But in a recent piece for The Times-Picayune, a New Orleans daily, distinguished law professor at the University of Southern California Rebecca L. Brown says the federalism argument is “false.”

First she notes there is “no serious argument that health care and insurance purchasing are not economic, or that they affect purely local interests – the arguments in all prior Commerce Clause challenges.” (Indeed the Constitution’s commerce clause provides Congress the authority to regulate conduct that substantially affects interstate commerce. The health care market accounts for more than 17 percent of the U.S. economy, and everyone, at some point, participates in it or is constantly at risk of incurring substantial medical expenses.)

Opponents of the law are aware of the parameters of the commerce clause and federal court precedent surrounding it, and are actually pushing an individual-rights argument. “The Affordable Care Act challenge,” Brown writes, “powerfully evokes that libertarian tradition by arguing that the requirement to purchase health insurance invades personal decision-making.”

But that argument, Brown continues, is as wobbly as the federalism argument.

“The challenge could have been framed openly in rights terms but would not prevail: The right to privacy has never been extended to economic purchasing decisions,” she writes.

The minimum coverage provision, the federal government argues, is indeed regulating conduct, which has substantial impact on the health care market that crosses all state borders. There are essentially two ways people can deal with the risk of incurring health care costs – obtain heath care insurance or wait until health coverage is needed. The decision to not purchase health care insurance inevitably results in shifting health care costs to those who do obtain coverage. In 2008, those who attempted to self-insure shifted $43 billion to others in the health insurance market. Thus attempting to self-insure is an action that profoundly impacts the economy.

So Brown believes this should not be a tough case for the Supreme Court, if it follows precedent. The minimum coverage provision she concludes “neither threatens federalism nor violates recognized individual rights, the vote on the court should be unanimous – not because the justices like the law, but because they respect the Constitution.”