Law school dean Jeremy Paul is a guest contributor to UConn Today. His posts appear on Thursdays. To read more of his posts, click here.
I haven’t had time to follow the historic Supreme Court arguments this week as closely as I would like. But something about the public discourse over the Affordable Care Act troubles me. Many journalists have missed how critics of the Act’s constitutionality, including some of the lawyers in the case, are rhetorically combining two weak arguments into one that has become potentially strong enough to move the Court. I don’t wish to write a brief on one side or the other, but general readers need to hear a bit more about the legal issues at stake.
Let’s start with some basics. The debate over the wisdom of the mandate requiring individuals to buy health insurance has been resolved via an Act of Congress that has been signed into law by the President. Accordingly, this week’s argument over the mandate is about Congress’ power to act, not about whether Congress acted wisely.
Critics of the Act suggest Congress has exceeded its authority because it lacks the power to require individuals affirmatively to purchase health insurance as a means of shoring up the insurance market. But where exactly is the problem?
One concern is that Congress has exceeded the authority granted to it to regulate commerce among the several states. The Supreme Court has long struggled with placing limits on federal power. And the Affordable Care Act does thrust the federal government into regulating a market often left to the states. But can there be any doubt that the market for health insurance is a national market in which healthy residents of one state could, by declining to purchase health insurance, drive up premiums for residents in another state? And, if prices across the country could be affected, the Affordable Care Act seems easily to fit within the long line of Supreme Court cases granting Congress broad powers to regulate national markets. Indeed, at least in the press, critics of the Act seem to have little to refute this application of longstanding precedent other than to note the novelty of a citizen being compelled to purchase a private good.
Instead, key aim has been taken at what might be called the intrusiveness of the Act. By imposing on citizens an affirmative requirement to purchase insurance, the federal government seems to be inserting itself deeply into the lives of ordinary Americans. Thus the Justices moved quickly to the now infamous broccoli argument – if the government can do this, can it make us buy broccoli? As all Americans do, I have sympathy for keeping regulation of private life on a short leash. But what I don’t see is how the broccoli argument has anything to do with the purpose underlying the Commerce Clause of drawing lines between federal and state power.
Our instinctive reaction that we should be able to eat foods of our own choosing comes not from a concern that the feds should stay out, but rather from a sense that government of any kind should keep its mitts off our kitchen table. Would we be comforted if it was Connecticut that required us to eat our broccoli? The intrusiveness problem then seems more firmly grounded in longstanding liberty concerns we usually place within due process protections. But a due process attack on the Affordable Care Act would be equally potent against the Massachusetts health care mandate. Yet that state law has been firmly in place for several years. Indeed, from a due process vantage point, the Affordable Care Act fits safely within a host of other requirements that governments impose on citizens, including paying taxes; receiving vaccinations; buying auto insurance; and being drafted. Little reason exists to think that a due process challenge against the Affordable Care Act would carry much weight.
But if the Act fits within our historical understanding of Congress’ commerce power and does not violate notions of due process, why are all the commentators telling us that it is likely to be invalidated? Because the direction of the argument has been to merge understandable concerns about all government overreaching into what should have been a more limited inquiry into the nature of whether this is a state or federal matter and whether the topic at hand really is commerce. Justices Kennedy and Scalia seem to be signaling their view that if the mandate is overly intrusive it must be unconstitutional, even if it’s not exactly clear why. No one doubts that the Court has long struggled with finding a principle that would limit federal reach, and that the Affordable Care Act does break new ground. But any convincing opinion invalidating the statute will have to explain why the kind of intrusion involved in the individual mandate is any more problematic at the federal level. Otherwise, the commerce clause will have been turned into an instrument used by the Court to reject validly enacted legislation on the grounds that it makes some Justices uncomfortable.