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.
Barnett and his supporters concede that, since 1937, Congress has enjoyed broad authority to regulate economic activities that substantially affect interstate commerce. They claim, however, that the mandate regulates inactivity rather than activity -- it forces us to take an action rather than regulating an action we have already undertaken. The problem with this reasoning is that the focal points of commerce clause inquiry have always been the subject matter targeted (whether it is "economic" in nature) and the effects it may have across state lines. It is only because the mandate clearly passes these tests that opponents have invented the "inactivity" argument. As a practical matter, it seems unlikely that the Court would limit the commerce power in this way, if for no other reason than the proposed distinction makes very little sense on the ground. One can just as easily interfere with interstate commerce through inaction as action, and it is this interference that Congress is empowered to prevent.
Sandefur and others take a slightly different tack in claiming that the Act does not, in fact, regulate commerce, but instead requires it. This is novel argument that has arisen as a response to those who have pointed out that, in the exercise of other enumerated powers, Congress quite regularly targets inactivity. As just one example, we have always thought Congress capable of requiring military service. Sandefur argues, however, that there is a constitutional difference between the power to "raise" an army, and the power to "regulate" commerce. Again, as clever as this argument seems, it should fail as a matter of constitutional doctrine. The power to regulate must include the ability to normalize commercial transactions, or to protect economic actors (such as insurance providers) from potentially destructive market forces (such as the failure to buy insurance until it is needed). A doctrine holding otherwise is potentially very dangerous, indeed.
Nonetheless, health care opponents are chomping at the bit for Supreme Court review. Even as Judge Vinson stays his ruling pending appeal, Republican's claim that irreparable harm will result if the Court allows these cases to go through the time-honored channels of appellate procedure. Expedited review is a bad idea for two important reasons. First is the Court's reputation and legitimacy as an apolitical branch of government. The last time the Court expedited review was in Bush v. Gore, and there is no doubt that a hasty adverse ruling here would further weaken the Court's claim to political impartiality. Second, this is at heart a policy debate, not a judicial debate. As such, it is a question that we are doing our best to work out in various political arenas. To short circuit this quintessentially American process would do a disservice not just to those without adequate health insurance, but also to democracy itself.