The Patient Protection and Affordable Care Act (PPACA), or “Obamacare,” is heading to the Supreme Court.
The issue with PPACA essentially boils down to a constitutionality argument: is the provision that all U.S. citizens must buy health insurance a federal power not granted under the constitution?
To be sure, there is no mention of healthcare in the U.S. constitution and to think the Commerce Clause allows the federal government the power to mandate healthcare amongst states is a stretch from the clause’s original intent. However, the Commerce Clause has been interpreted more broadly over the years and current court precedent as that it should not second guess legislators.
In Florida et al v. United States Department of Health and Human Services, however, U.S. District Judge Roger Vinson ruled that the U.S. federal government had the constitutional power to regulate commerce and enforce compliance amongst the states, but that it couldn’t “create” commerce. Vinson also noted that the federal government regulates economic activity but that there is no precedent for regulating non-activity—in this case, the refusal to buy health insurance, either as an individual or employer.
As Vinson wrote in October, “Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an ‘Alice-in-Wonderland’ tack and argue in court that Congress really meant something else entirely.”
Here Vinson is speaking to the fact that Justice Department lawyers argued in court that the penalty was in fact tax, when the government had originally asserted the bill was permitted under the Commerce Clause. This is significant because the legislation’s champions had sought to avoid calling it a tax at the outset (which would have been political suicide), hence the arrival at the Commerce Clause argument.
Ultimately, Vinson ruled that medicare expansion was not a burden to the states, but that the “individual mandate” could not be enforced by the Necessary and Proper Clause nor was it an act of interstate commerce under the Commerce Clause. He stated, “Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void.”
The Justice Department appealed to the 11th Circuit Court of Appeals, which upheld Vinson’s ruling in a three-judge panel (not en banc, or with the full panel of judges), but ruled that it could be severed from PPACA. This is significant because the 11th Circuit Court of Appeals three-judge panel had a Democrat majority, with two justices appointed during the Clinton Presidency.
The dissenting opinion, written by Stanley Marcus, noted that the panel’s majority “has ignored the undeniable fact that Congress’ commerce power has grown exponentially over the past two centuries and is now generally accepted as having afforded Congress the authority to create rules regulating large areas of our national economy.”
The government, of course, argues that those who do not buy health insurance but seek medical care drive up the costs for all by forcing the government (without choice) to pick up the tab.
In essence, it boils down to the mechanism by which taxpayers are taxed to pay for the healthcare.
Other federal courts, however, upheld the law. The 4th Circuit, in the Commonwealth of Virginia v. Kathleen Sebelius, rejected the challenge and it was appealed to the Supreme Court. The US Court of Appeals for the District of Columbia in Susan Seven-Sky, et al. v. Eric Holder Jr., et al., affirmed the law, and the court was packed with conservative-appointed judges. The 6th Circuit Court of Appeals also ruled the law constitutional. Only the 4th, 6th and 11th circuit appeals are being heard before the Supreme Court.
If we are being intellectually honest, though, it is somewhat troublesome that the government is forcing citizens to purchase a service (healthcare) from a private enterprise (the health industry), even though it would serve a moral and human rights interest.
We are then faced with two opposing ideas—that the Commerce Clause does not give the U.S. Congress the power to pass and enforce an individual mandate, and that, conversely, commerce has changed so dramatically over two hundred some years that healthcare is far too critical to commerce, or the economy, to be left as is.
One can see the validity in both arguments.
The Supreme Court has one hell of a case on its hands and it’s believed that Justice Anthony Kennedy will be the swing vote.
Something to consider as one final thought, though, is this: If the government can assert that it has the power to force someone to buy health insurance, what other arguments will be made in the future—on similar constitutional grounds—to force citizens into compliance?
How might the Commerce Clause be manipulated by ill-intentioned individuals?