This post first appeared in The Nevada View (Author - Justin McAffee)
The Eleventh Circuit Court’s ruling that the individual mandate in the Affordable Care Act is unconstitutional may make the heart of some conservatives flutter, but don’t go getting your hopes up, (or down as the case may be). Conservatives on the Supreme Court somewhat recently ruled in a highly expansive interpretation of the Commerce Clause of the U.S. Constitution, in which the regulation of economic inactivity of individuals was upheld as Constitutional. (See Thomas McAffee on Judge Vinson's decision for more on this topic.)
In the case of Gonzalez v. Raich, two prominent conservatives on the Court (Scalia and Kennedy) ruled in favor of expanding the Commerce Clause to a federal power that regulates something that is not a “commercial activity.” A single individual growing a plant for their own personal use does not qualify as an economic activity under the standard that the 11th Circuit ruling suggests is required.
However, the decision of whether or not to purchase health insurance has a dramatic impact on commerce nation wide. It affects the price of health insurance, and also is the primary reason there are restrictions on the purchase of health insurance by people who have preexisting conditions.
A conservative judge, Jeffrey Sutton, well respected in conservative circles, upheld the individual mandate in the 6th Circuit decision (hat tip to Washington Post):
“Few people escape the need to obtain health care at some point in their lives, and most need it regularly.” He added: “No one is inactive when deciding how to pay for health care, as self-insurance and private insurance are two forms of action for addressing the same risk. Each requires affirmative choices; one is no less active than the other; and both affect commerce.”
There are other instances in which the Court has upheld Congressional mandates related to inactivity. Justice Scalia cites to the Darby case in his opinion in the Raich case, where Congress mandated that employers be required to keep employment records. If the employers weren’t keeping records before, and Congress mandated it, now the employers were required to engage in commercial activity it wouldn’t otherwise have been engaged in -- namely the purchase of record keeping material and the employment of people to make and maintain such records.
Necessary and Proper
The 11th Circuit upheld the rest of the Affordable Care Act, including the provision that prohibits insurance companies from restricting access to insurance to people with preexisting conditions. One of the problems with this provision is the likelihood that people will wait until they are sick and need healthcare before buying insurance if this law is enforced. That would have a dramatic negative effect on interstate commerce, clearly giving Congress authority to do what’s necessary to regulate it properly. The only way to prevent people from waiting to purchase health insurance until they are sick is to require everyone to have insurance.
Thus the individual mandate itself is really supported by another provision in the constitution called the “Necessary and Proper Clause.” Since the preexisting condition provision of the Affordable Care Act is Constitutional, and Congress can “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,” certainly the individual mandate qualifies. It is invariably necessary and proper for carrying into execution the law that prevents denial of coverage based on preexisting conditions.
It's kind of sad that conservatives hang onto this mantra about sticking to the Constitution, when they don't appear to care what the Constitution says about the issue. This whole thing is a somewhat semantical and subjective argument about what qualifies as "regulating interstate commerce." It is offensive to suggest Democrats aren't upholding the Constitution because you have a narrow interpretation of the meaning of interstate commerce regulation, especially when conservative justices like Scalia have taken it's meaning to the farthest reaches of possible expansion.
As Steve Sebelius said, this is one step in a long road to the SCOTUS. If Justice Scalia and Kennedy found reason to allow federal regulation of an “economic inactivity” such as an individual growing their own plant legally under state law, it’s hard to imagine the monumental reversal of thought that would have to occur for them to rule against the individual mandate. The four justices appointed by Democrats will see it the same way. 6-3 decision upholds the Affordable Care Act.