December 14, 2012
It depends on which Supreme Court you ask.
Today’s Supreme Court would likely strike down the law, at least if it applied the same logic used in National Federation of Independent Business v. Sebelius (the health care reform ruling), decided earlier this year.
In NFIB, both the Chief Justice and the four dissenting Justices (in separate opinions) wrote that the “minimum essential coverage” provision of the Affordable Care Act (ACA) (i.e. the “individual mandate”), which requires individuals to acquire health insurance or face increased taxes, is not a valid exercise of Congress’ power under the Commerce Clause.
The Chief Justice’s logic in NFIB was that the power to “regulate” something under the Commerce Clause does not include the power to create it, and that the individual mandate “does not regulate existing commercial activity,” but “instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.”
As such, the individual mandate is not a valid exercise of congressional Commerce Clause authority (as we all know, the Chief Justice did uphold the provision’s constitutionality on Taxing Clause grounds).
A literal application thereon would, in all likelihood, find Title II unconstitutional.
After all, Title II is very similar to the individual mandate: both were justified under the Commerce Clause, and both purportedly “compel individuals to become active in commerce…on the ground that their failure to do so affects interstate commerce.”
Where the individual mandate requires an individual to acquire insurance, Title II requires businesses to serve customers that they previously simply did not.
Some may argue that Title II regulates those already engaged in commerce – businesses serving the public – and that such commerce was actually only “regulated,” not “created.”
However, the same logic is applicable to the individual mandate: every individual will use the health care system at some point in his or her life.
Thus, the individual mandate does not force individuals to participate in a system that they wouldn’t normally; instead of creating commerce, it merely regulates how and when that commerce is manifested.
In any case, and luckily for many civil rights advocates, the Supreme Court of 1964 did not espouse the same view of the Commerce Clause that the contemporary Court does: Title II of the 1964 Civil Rights Act was upheld on December 14, 1964 in the landmark ruling Heart of Atlanta Motel v. U.S.
The logic of 1964’s Supreme Court in doing so made no mention of whether commerce was created by the Act (such a line of reasoning is novel and was invented by opponents of the ACA in the course of their legal challenge).
Rather, the logic of the Heart of Atlanta Court was that Title II sufficiently affected interstate commerce.
The argument by the law’s opponents was that, aside from infringing on personal liberties, Title II overstepped Congress’ Commerce Clause authority because it affected individual establishments like the Heart of Atlanta Motel, which only had one location in the entire country.
The Court, however, rejected this argument, instead finding that since 75% of the hotel’s clientele were out-of-state travelers, and because the hotel was located at the intersection of two major highways, Congress had authority to regulate its economic activity because it sufficiently affected interstate commerce.
Why wasn’t the question of whether the individual mandate sufficiently affected interstate commerce central in NFIB (aside from the liberal bloc’s opinion)?
Likely because there is no question that individuals’ obtaining of health insurance sufficiently affects interstate commerce.
Why is this important?
I hate to be so cynical, but probably because of how politically charged the subject of the ACA had become at the time that NFIB was handed down.
In other words, yes, I am suggesting that Supreme Court Justices’ interpretation of the Constitution — then and now — is often directly influenced by political considerations.
Whether this politicization of the Court is appropriate requires a completely new discussion.
We can only hope that such politically motivated decisions are judged correct by history, as is the case with Heart of Atlanta Motel v. U.S.