Gaming the System: At The Supreme Court, Could Legal Precedent Be Less Important Than Popular Opinion?
Articles of faith, as a rule, don’t change every few months. And yet, just nine months ago, it was an article of faith among court watchers that President Obama’s health care reform plan would be upheld at the Supreme Court by a margin of 7-2 or 8-1. Today it is an equally powerful article of faith that everything rests in the hands of Justice Anthony Kennedy in what will surely be a 5-4 decision. What changed between last March and last Monday?
To review: When the first lawsuits were filed challenging the law in March 2010, the conventional wisdom was that they were little more than a Tea Party stunt. “Several constitutional law experts said this week that it is somewhere between unlikely and hard-to-imagine that the Supreme Court would strike down the new healthcare law,” wrote David Savage at the Los Angeles Times. He quoted George Washington University law professor Orin Kerr, a former Kennedy clerk, saying that “there is a less than 1 percent chance that the courts will invalidate the individual mandate.” In Newsweek in September 2010, Stuart Taylor quoted Walter Dellinger, acting solicitor general under President Clinton, predicting an 8-1 vote at the high court, and Tom Goldstein, another prominent court watcher and litigator, calling for a vote of 7-2.
Fast forward to this week. As my colleague David Weigel put it Monday: “The fate of health care reform is where it was yesterday—in the hands of Supreme Court Justice Anthony Kennedy.” The Wall Street Journal agreed, sighing, “As with so many contentious issues in American life, destiny appears to have appointed [Kennedy] the ultimate arbiter of the constitutionality of the linchpin of this new law: the individual mandate.” Now, the composition of the court has not changed since last year. Nor has the meaning of the Commerce Clause, or the decades of precedents interpreting that doctrine, or the words of the Affordable Care Act itself. The only thing that has shifted between the filing of the Obama health care suits and Judge Roger Vinson’s decision finding the entire bill unconstitutional is the odds. We went from “a less than 1 percent chance” of the suits succeeding to their success being determined by a coin flip in Anthony Kennedy’s chambers.
Putting aside the question of whether it matters what court watchers think—or whether the new odds should make any difference—it’s astounding to witness the conventional wisdom shift so dramatically and so rapidly. It took years for court watchers to take challenges to the collective-rights theory of the Second Amendment seriously. It’s taken just weeks for them to come to believe that the fate of the health care law may be decided by a single vote.
To those in the business of making predictions about the Supreme Court justices, one thing that did change was a smoke signal sent up by Justices Clarence Thomas and Antonin Scalia last month in a passionate dissent from the court’s refusal to hear a case from the 9th Circuit Court of Appeals. Alderman v. United States involved the right of the federal government to criminalize a violent felon’s purchase of body armor. And as Andrew Cohen explained it, the two justices weren’t obligated to publish a lengthy dissent, spelling out—complete with references to Hershey’s Kisses (the new broccoli?)—their view that the Commerce Clause does not allow the federal government to make such a regulation. Their small treatise on the limits of the Commerce Clause’s power, Cohen wrote, “confirms to the world that no more than seven votes on the Supreme Court are still in play over the constitutionality of the federal health care measure.”
Court watchers have long argued that Scalia cannot possibly square his vote (indeed his own words) in the 2005 case of Gonzales v. Raich with a vote to strike down health care reform. Once they read the Thomas/Scalia dissent in Alderman, they had to swallow hard. In Raich, Scalia agreed that Congress could regulate marijuana that was neither purchased nor sold in any market but grown for medicinal reasons at home. “The authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce,” Scalia wrote. “Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.” He added that “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.”
These words matter a lot to supporters of health care reform. But it’s no longer clear how much they matter to Justice Scalia.
Simon Lazarus has a thoughtful post about all the ways in which the court’s more conservative justices—not just Scalia but also Kennedy and Chief Justice Roberts—”will have to twist their prior decisions and statements into pretzels in order to rule the individual mandate or other ACA provisions unconstitutional.” Reading Raich against the Alderman dissent, I am not sure all the justices are terribly bothered at the prospect of performing such gymnastics. Supreme Court reporters like to believe that the justices are invariably hemmed in and pinned down by their prior decisions, and in a perfect world they might be. But if we learned anything at all from Bush v. Gore, it’s that in landmark cases with huge symbolic stakes, justices on both sides of the aisle can get all kinds of creative.
If that is the case, then in the coming months we should pay less attention to the words of Raich and more to the political scientists and judicial behavior theorists who have a lot to say about how justices decide cases. What really changed between last March and this week is that in making predictions about what happens to health care reform, we have almost entirely stopped talking about the law or the Constitution and begun to think solely in terms of strategic judicial behavior.
Court watchers on both sides of the debate seem to agree that Vinson’s opinion was rooted more in his convictions about the need to restrain federal overreaching than in the court’s modern Commerce Clause precedents. The question now seems to be less about whether the justices can find a way to strike down the law if they so choose—they can—than whether they have the political stomach to do it.
I am not an expert on judicial stomachs. But it seems to me that once you start thinking strategically about how health care reform will fare at the Supreme Court, pretty soon you arrive at some serious questions about the continued legitimacy of the court, judicial responses to public sentiment, and other matters that have far more to do with social psychology than Wickard v. Filburn.
Everyone would like to believe that the kind of constitutional issues presented in these health care suits are clear and specific. But they are precisely the sort of wide-open normative inquiries that may tempt even great and fair jurists to have a little extra-textual fun. “American constitutional lawyers, whether practitioners, academics or judges, seem to feel relatively few genuine constraints in the kinds of arguments they are willing to make or endorse,” professor Sanford Levinson has written. “It is, I am convinced, harder to recognize a frivolous argument in constitutional law than in any other area of legal analysis.”
If the odds of success for the health care challenges have tilted in recent months, it’s not because the suits themselves have somehow gained more merit. It’s because the public mood and the tone of the political discourse have shifted dramatically—emboldening some federal judges willing to support a constitutional idea whose time, in their view, has finally come. Whether this sea change will affect the Supreme Court remains to be seen. At least on paper, the Supreme Court is immune to whatever the odds makers are saying about the law’s chances. If recent weeks have shown us anything, however, it’s that what’s on paper doesn’t matter as much as we think it does in the nation’s courts.
By: Dahlia Lithwick, Slate, February 2, 2011
Judge Vinson’s Health Care Smackdown: What’s A Tea Party Without Tea Leaves?
In his spare time, U.S. District Judge Roger Vinson, the author of Monday’s sweeping ruling gutting as “a bridge too far” the entirety of the Patient Protection and Affordable Care Act, apparently serves as the president of the board of directors of the American Camellia Society, an industrious group that evidently appreciates and nurtures a tiny, colorful corner of God’s Green Earth. The camellia is known around the world not just as a plant that produces beautiful flowers — it is the state flower of Alabama, for example — but also as a plant that produces tea leaves. And what’s a Tea Party, after all, without a healthy supply of tea leaves?
It cannot be a coincidence, then, that Judge Vinson, the Reagan appointee who has chosen reverence to the camellia as a hobby, would choose to compare (unfavorably, even) the Obama Administration’s complicated (and increasingly endangered) effort to bring health insurance to 30 million Americans with the efforts of King George III and the British East India Company to tax the tea the colonials quoffed.
“It is difficult to imagine,” Judge Vinson wrote in his 78-page ruling, “that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.”
Tea Party analogy? Check. Head-scratching analysis? Check. Judge Vinson wrote:
“… the mere status of being without health insurance, in and of itself, has absolutely no impact whatsoever on interstate commerce (not ‘slight,’ ‘trivial,’ or ‘indirect,’ but no impact whatsoever) — at least not any more so than the status of being without any particular good or service. If impact on interstate commerce were to be expressed and calculated mathematically, the status of being uninsured would necessarily be represented by zero. Of course, any other figure multiplied by zero is also zero. Consequently, the impact must be zero, and of no effect on interstate commerce.
The uninsured can only be said to have a substantial effect on interstate commerce in the manner as described by the defendants: (i) if they get sick or injured; (ii) if they are still uninsured at that specific point in time; (iii) if they seek medical care for that sickness or injury; (iv) if they are unable to pay for the medical care received; and (v) if they are unable or unwilling to make payment arrangements directly with the health care provider, or with assistance of family, friends, and charitable groups, and the costs are thereafter shifted to others.”
Got that? The uninsured can only have a “substantial effect on interstate commerce” — and thus be regulated by Congress — if they are subject to the precise conditions which exist today all over the country, and which prompted the Act in the first place. The judge acknowledges this point, to his credit, saying that the Congress would of course have the power to regulate the millions of people who meet his five criteria above. But he then concludes: “But, to cast the net wide enough to reach everyone in the present, with the expectation that they will (or could) take those steps in the future, goes beyond the existing ‘outer limits’ of the Commerce Clause” (emphasis in original).
I suspect there will be a million words of legal and political analysis over the logic and viability of that conclusion.
Unsolicited and simplistic recommendations for the legislative branch? Also check. Judge Vinson wrote: “If Congress intends to implement health care reform — and there would appear to be widespread agreement across the political spectrum that reform is needed — it should do a comprehensive examination of the Act and make a legislative determination as to which of its hundreds of provisions and sections will work as intended without the individual mandate, and which will not.” In other words: Try again, Congress, and good luck with that!
Painfully half-hearted expression of regret for kicking the entire Affordable Care Act to the curb? Check. Judge Vinson wrote: “I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the Act with the individual mandate. That is not to say, of course, that Congress is without power to address the problems and inequities in our health care system. The health care market is more than one sixth of the national economy, and without doubt Congress has the power to reform and regulate this market. That has not been disputed in this case. The principal dispute has been about how Congress chose to exercise that power here” (emphasis added).
I am sure that others, including some of my colleagues here at the Atlantic, will be spending time in the coming hours and days further parsing the ruling. For me, for now, it’s enough to say that Judge Vinson delivered for opponents of the Act precisely what he had promised them one month ago in open court in the motion hearing; a epic, hero-to-a-cause ruling that somehow makes U.S. District Judge Henry Hudson’s ruling last month in Virginia, which also struck down the “individual mandate,” seem like a relative exercise in judicial restraint. And that’s saying something.
Two federal trial judges (Democratic appointees both) have declared the law valid. Now two federal trial judges (Republican appointees both) have declared the law invalid. Ultimately, the United States Supreme Court — and by that I mean swing-voter Justice Anthony Kennedy, who also is a Reagan appointee — will decide. But no matter what happens from here on in, Judge Vinson, lover of flowers and tea-leaf-reader by choice, has just ensured himself at least one more day in the sun.
By: Andrew Cohen -The Atlantic-January 31, 2011: Andrew Cohen has served as chief legal analyst and legal editor for CBS News and won a Murrow Award as one of the nation’s leading legal analysts and commentators.
Judge Rules Against Reform, Ignores Facts
Federal Judge Roger Vinson has ruled against the Affordable Care Act, striking down not just the individual mandate but the rest of the law, as well. Vinson had made his skepticism of the law very clear during oral argument, so the ruling isn’t surprising, although his decision to invalidate the entire statute goes farther than the decision by Judge Henry Hudson, the federal judge who invalidated the law last last year.
Vinson did not halt implementation of the law. (That would have been surprising.) And, to be clear, two other federal judges have ruled the law is constitutional while about a dozen more have dismissed lawsuits without even hearing. The final word, almost certainly, will come from the Supreme Court. And it could be two years before a case reaches that far.
I’ve only skimmed the decision very quickly. Once I’ve read it more carefully, I’ll (hopefully) have more intelligent things to say. But, at first glance, two things leap out at me.
Defenders of the Affordable Care Act (myself among them) argue that the power to impose the mandate lies in two parts of the Constitution: the power to levy taxes and the power to regulate interstate commerce. Vinson rejects the tax argument and, in explaining his rationale, suggests that even the two judges who upheld the mandate agreed with him on this. But this is incorrect. Judge George Steeh, the federal judge from Michigan, declared that the tax argument was “without merit.”
The other striking thing about Vinson’s ruling is his reasoning on interstate commerce–and its apparent ignorance of policy reality. Vinson says the mandate is unconstitutional because, in effect, the link between insurance status and interstate commerce is too weak:
…the mere status of being without health insurance, in and of itself, has absolutely no impact whatsoever on interstate commerce (not “slight,” “trivial,” or “indirect,” but no impact whatsoever) — at least not any more so than the status of being without any particular good or service. [Emphasis in original]
Again, this is just wrong, as anybody who understands the health care market will tell you. From my January article on the case:
When doctors and hospitals give uncompensated care to people without insurance, these providers of care pass along higher prices to everybody else who pays, and those higher prices show up as either larger taxes, larger insurance premiums, or larger out-of-pocket expenses. In addition, if people know they can get insurance even if they have pre-existing conditions, some will wait until getting sick before buying insurance. That upsets the delicate actuarial balance of insurance plans, which depend on premiums from healthy people to offset the costs of the sick. Premiums end up rising even more.
Researchers at the nonpartisan Urban Institute, which has developed its own mathematical model of the health care market, have run simulations on how the Affordable Care Act would play out without the individual mandate. They found that an additional 18 million people would end up without insurance. Jonathan Gruber, an MIT economist and respected authority in his own right, determined that without a mandate, premiums for people buying coverage on their own would be 27 percent higher. Gruber has advised health care reformers, including the architects of the Affordable Care Act. But the nonpartisan Congressional Budget Office got similar results from its calculations. And while economic models can certainly be wrong, these results are consistent with real-world experience: In those states where laws already require insurers to sell to anybody but insurance enrollment is not compulsory, premiums have gone way up.
Again, I’ll have more to say soon. In the meantime, keep in mind that the plaintiffs got the results they wanted in part because they got the judge they wanted. Bill McCollum, Florida’s attorney general, and his allies didn’t file the case before the federal court in Tallahassee. They filed the case in nearby Pensacola. I assume (although I can’t be sure) that’s because it increased their chances of getting a conservative judge, like Vinson.
In any event, it’s just one decision among several. And it ultimately matters only insofar as the Supreme Court decides to embrace it.
By: Jonathan Cohn-The New Republic, January 31, 2011
Republicans Say Everything the Dems Pass Is Unconstitutional — Even Policies They’ve Championed for Decades
That Republicans are relentlessly attacking the constitutionality of what had long been one of their signature ideas for reforming the health-care system — the individual mandate requiring people to buy insurance or pay a penalty – is a testament to just how far down the rabbit-hole our discourse has gone.
Late last year, when a federal judge ruled against the mandate (two other courts disagreed, and the Supreme Court will end up deciding the question), Senator Orrin Hatch, R-Utah, rejoiced. “Today is a great day for liberty,” he said. “Congress must obey the Constitution rather than make it up as we go along.” It was an odd testament to freedom, given that Hatch himself co-sponsored a health-care reform bill built around an individual mandate in the late 1990s.
Journalist Steve Benen noted that while “the record here may be inconvenient for the right … it’s also unambiguous: the mandate Republicans currently hate was their idea.”
It was championed by the Heritage Foundation… Nixon embraced it in the 1970s, and George H.W. Bush kept it going in the 1980s. For years, it was touted by the likes of John McCain, Mitt Romney, Scott Brown, Chuck Grassley, Bob Bennett, Tommy Thompson, Lamar Alexander, Lindsey Graham, John Thune, Judd Gregg, and many other … notable GOP officials.
According to NPR, the mandate was the Right’s response to progressive proposals to establish a single-payer system. Mark Pauly, the conservative economist widely credited with the idea, explained that “a group of economists and health policy people, market-oriented, sat down and said, ‘Let’s see if we can come up with a health reform proposal that would preserve a role for markets but would also achieve universal coverage.'”
That was then, this is now. Since it was a Democratic Congress that enacted the mandate, this conservative idea for creating a business-friendly model of universal health care has become something profoundly un-American, according to many of those very same Republicans who championed it. (Asked about the GOP’s retreat from the individual mandate it had long promoted, Pauly said, “That’s not something that makes me particularly happy.”)
And as is generally the case in these heady days of Tea Party conservatism, it’s not just that the individual mandate is bad – it’s also “un-Constitutional” (just like child labor laws, federal disaster assistance, food safety standards, etc.). As Gary Epps, a legal scholar at the University of Baltimore, put it, “Conservative lawmakers increasingly claim that the ‘original intent’ of the Constitution’s framers and the views of the right wing of the Republican Party are one and the same.”
A brief filed in support of Virginia’s challenge to the Affordable Care Act by the Landmark Legal Foundation – headed by noted wing-nut radio host Mark Levin, who believes that the Tea Partiers have been “tormented and abused far more than the colonists were by the King of England” – laid out the argument, calling the erstwhile Republican approach to universal health care “evidence of congressional power run amok.”
Congress can tax interstate commerce, it can regulate interstate commerce, it can even prohibit certain types of interstate commerce, but it cannot compel an individual to enter into a legally binding private contract against the individual’s will and interests. There is nothing in the history of this nation, let alone the history of the Constitution … that endorses such a radical departure from precedent, law, and logic.
Like most of the Right’s views of the Constitution – and the Founders’ intent – this is entirely wrong; it’s historical revisionism driven by ideology.
In 1792, none other than George Washington signed the Uniform Militia Act, a law requiring every white male citizen to purchase a whole basket of items – “a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein” – from private companies. Bradley Latino at Seton Hall law school’s Health Reform Watch added that “this was no small thing.”
Although anywhere from 40 to 79% of American households owned a firearm of some kind, the Militia Act specifically required a military-grade musket. That particular kind of gun was useful for traditional, line-up-and-shoot 18th-century warfare, but clumsy and inaccurate compared to the single-barrel shotguns and rifles Americans were using to hunt game. A new musket, alone, could cost anywhere from $250 to $500 in today’s money. Some congressmen estimated it would cost £20 to completely outfit a man for militia service — about $2,000 today.
Some on the Right have argued that this history is irrelevant as the law was passed under the auspices of the Constitution’s militia clauses, not the Commerce Clause. That’s true, but doesn’t change the fact that it disproves the claim that Congress has never compelled citizens to purchase goods or services from private firms – that’s patently false, regardless of how the measures differed in their details.
And despite the fact that there were a number of legislators serving in that Congress who had signed the Constitution five years earlier, “not one of militia reform’s many opponents thought to argue the mandate was a government taking of property for public use. Nor did anyone argue it to be contrary to States’ rights under the Tenth Amendment.” Those who opposed the bill simply argued that it would put too great a burden on the poor.
Of course, mandating that citizens buy a gun is different than requiring them to purchase health insurance. But as Rick Ungar, an attorney and writer, pointed out, Congress did in fact pass a mandate requiring health insurance…back in 1798.
The Act for Sick and Disabled Seamen created a government-operated hospital system – socialized medicine! – and mandated that all privately employed sailors purchase health insurance in order to sail.
It’s not an exact parallel. Nobody was forced to become a merchant seaman. But as Ungar noted, “this is no different than what we are looking at today. Each of us has the option to turn down employment that would require us to purchase private health insurance under the health care reform law.”
The Act also required sea captains to withhold 1 percent of sailors’ earnings to finance the program rather then mandate that they purchase a policy themselves – it was the first payroll tax. But as Ezra Klein noted in the Washington Post, “if conservatives really do prefer a system of payroll taxes that purchase you public insurance to the private system envisioned in the Affordable Care Act, I’m sure there are a lot of liberals who would vote for a bill that repealed the Affordable Care Act and replaced it with Medicare-for-all.”
It’s an important point – the liberal approach to universal health care is not only simpler and far more cost-effective, but unlike the Right’s individual mandate, it also falls unambiguously within the federal government’s enumerated powers.
Health care is also, in the words of the Congressional Research Service, “a unique market” in that one cannot opt out of it even if one wishes to do so. That’s because, by law, we don’t allow people to simply die in the streets, untreated. The uninsured without the means to pay nonetheless get (very costly) care in emergency rooms, and the rest of us pick up the tab.
And here, again, it’s worth noting that “the 5th Congress did not really need to struggle over the intentions of the drafters of the Constitutions in creating this Act as many of its members were the drafters of the Constitution.” The bill was signed into law by none other than John Adams, considered to be among the most influential of the “Founding Fathers.” Thomas Jefferson was the president of the Senate at the time, and Jonathan Dayton, the youngest man to sign the Constitution, served as Speaker of the House.
As the current legislation stands, even the American Enterprise Institute concedes that “the majority of constitutional experts are betting that the courts will uphold the mandate” – although they’re not happy about it. And that’s because the other Constitutional arguments against the reforms are just as dubious. Conservatives have come to use the Constitution as a crutch, avoiding debates on the merits of various proposals by asserting, with a broad wave of the hand, that whatever the policy in question may be, it’s all illegitimate.
The constitutionality of the health-care mandate will ultimately be decided by an activist majority on the Supreme Court. Nobody can predict how it will rule, but the Constitution gives the Congress power to “to lay and collect Taxes, Duties, Imposts and Excises … and provide for the common Defense and general Welfare of the United States,” a power the Congressional Research Service characterizes as ”one of the broadest powers in the Constitution,” and one that forms “the basis of government health programs in the Social Security Act, including Medicare, Medicaid, and the State Children’s Health Insurance Program.”
The Supreme Court has interpreted the Commerce Clause as giving the government the authority to regulate not only interstate commercial transactions in a limited sense, but also “those activities having a substantial relation to interstate commerce.” (Our health-care system is the costliest in the world, and eats up about 18 percent of our economic output, so it’s hard to see how one can argue that it doesn’t have a “substantial relation” to our national economy.)
Then there’s the common conservative argument that the Commerce Clause only covers economic activity, but not inactivity – a claim that is also factually incorrect, but was nonetheless accepted by Henry Hudson, the federal judge who ruled against the government in the Virginia suit. But even if it were true, it’s hard to see the relevance of the argument given the Constitution’s Necessary and Proper clause, which authorizes the government to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”
So, to recap: Congress is expressly authorized to raise taxes and spend public funds to further the “general welfare” of the nation; it can regulate any area that has a “substantial relation” to interstate commerce, and it can pass any law that is “necessary and proper” to further those enumerated powers.
On its face, there’s nothing in the Constitution constraining the government from enacting its health-care scheme. But the heart of conservative rhetoric these days is that any legislation passed by Democrats is illegitimate and defies the will of the Founders, as channeled by the mystics who lead the Tea Party movement.
That’s apparently the case even when those policies are among those they’ve championed for years based on their own ideological preferences.
By: Joshua Holland, Editor and Senior Writer, AlterNet-January 28, 2011
Clearly Constitutional: A Primer on the Constitutionality of the Affordable Care Act
Nearly three dozen judges have now considered challenges to the landmark Affordable Care Act and the overwhelming majority of these cases have been dismissed. Nevertheless, a single outlier judge in Virginia has embraced the meritless arguments against the new health care law and another judge in Florida also appears poised to break with the overwhelming consensus of his colleagues.
With only a few exceptions, these lawsuits principally challenge the Affordable Care Act’s minimum coverage provision—the provision requiring most Americans to either carry health insurance or pay slightly more income taxes—falsely arguing that Congress lacks the constitutional authority to enact such a provision. It is true that Congress’s authority is limited to an itemized list of powers contained in the text of the Constitution itself, but while Congress’s powers are not unlimited, they are still quite sweeping. There is no doubt that the Affordable Care Act fits within these enumerated powers in three ways, as this issue brief will demonstrate.
Congress has broad power to regulate the national economy
A provision of the Constitution known as the “commerce clause” gives Congress power to “regulate commerce … among the several states.” And there is a long line of Supreme Court decisions holding that Congress has broad power to enact laws that substantially affect prices, marketplaces, or other economic transactions. Because health care comprises approximately 17 percent of the national economy, it is impossible to argue that a bill regulating the national health care market does not fit within Congress’s power to regulate commerce.
Nevertheless, opponents of the Affordable Care Act claim that a person who does not buy health insurance is not engaged in any economic “activity” and therefore cannot be compelled to perform an undesired act. Even if these opponents were correct that the uninsured are not active participants in the health care market— and they are active, of course, every time they become ill and seek medical care—nothing in the Constitution supports this novel theory. Indeed, this theory appears to have been invented solely for the purpose of this litigation. Congress has enacted countless laws which would be forbidden under this extra-constitutional theory:
- Guns: President George Washington signed a law that required much of the country to purchase a firearm, ammunition, and other equipment in case they needed to be called up for militia service. Many of the members of Congress who voted for this mandate were members of the Philadelphia Convention that wrote the Constitution.
- Civil rights: The Civil Rights Act of 1964 compelled business owners to engage in transactions they considered undesirable—hiring and otherwise doing business with African Americans.
- Insurance mandates: The Affordable Care Act is not even the only federal law requiring someone to carry insurance. The Price-Anderson Act of 1957 requires nuclear power plants to purchase liability insurance and the Flood Disaster Protection Act requires many homeowners to carry flood insurance.
- Other mandates: Other laws require individuals to perform jury service, file tax returns, and register for selective service.
The minimum coverage provision is the keystone that holds the Affordable Care Act together
The Constitution also gives Congress the power “[t]o make all laws which shall be necessary and proper for carrying into execution” its power to regulate interstate commerce. As Supreme Court Justice Antonin Scalia explains, this means that “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”
The act eliminates one of the insurance industry’s most abusive practices—denying coverage to patients with pre-existing conditions. This ban cannot function if patients are free to enter and exit the insurance market at will. If patients can wait until they get sick to buy insurance, they will drain all the money out of an insurance plan that they have not previously paid into, leaving nothing left for the rest of the plan’s consumers.
Seven states enacted a pre-existing conditions law without also passing an insurance coverage requirement, and all seven states saw health insurance premiums spiral out of control. In some of these states, the individual insurance market collapsed.There is a way out of this trap, however. Massachusetts enacted a minimum coverage provision in 2006 to go along with its pre-existing conditions provision and the results were both striking and immediate. Massachusetts’ premiums rapidly dropped by 40 percent.
In other words, because the only way to make the pre-existing conditions law effective is to also require individuals to carry insurance, that requirement easily passes Scalia’s test.
The link between the minimum coverage provision and the Affordable Care Act’s insurance regulations also sets this law aside from other hypothetical laws requiring individuals to purchase other goods or services. The national market for vegetables will not collapse if Congress does not require people to purchase broccoli, nor will Americans cease to be able to obtain automobiles absent a law requiring the purchase of cars from General Motors. Accordingly, a court decision upholding the Affordable Care Act would not provide a precedent enabling Congress to compel all Americans to purchase broccoli or cars, despite the law’s opponents’ claims to the contrary.
Congress has broad leeway in how it raises money
Congress also has the authority to “lay and collect taxes” under the Constitution. This power to tax also supports the minimum coverage provision, which works by requiring individuals who do not carry health insurance to pay slightly more income taxes. Taxpayers who refuse insurance must pay more in taxes while those who do carry insurance are exempt from this new tax. For this reason, the law is no different than dozens of longstanding tax exemptions, including the mortgage interest tax deduction, which allows people who take out home mortgages to pay lower taxes than people who do not.
Opponents of the Affordable Care Act respond that the minimum coverage provision somehow ceases to be a tax because the new law does not use the word “tax” to describe it, but this distinction is utterly meaningless. Nothing in the Constitution requires Congress to use certain magic words to invoke its enumerated powers. And no precedent exists suggesting that a fully valid law somehow ceases to be constitutional because Congress gave it the wrong name.
By Ian Millhiser, Policy Analyst and Blogger for the Center for American Progress where his work focuses on the Constitution and the Judiciary-January 18, 2011
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