Dr. SCOTUS: Striking down the individual mandate would neuter Congress’s powers

June 20, 2012

Health Care at the Supreme Court(Editor’s note: The Supreme Court will rule on the legal challenges to 2010′s Affordable Care Act by the end of June.  Leading up until the end of the month, we’ll be looking at how the law could change with a Supreme Court ruling upholding or overturning the law).

For the first week’s post on the Medicaid expansion, click here.

For the second week’s post on severability, click here.

The constitutionality of the individual mandate is probably the most closely watched of the four questions in the health care reform challenge before the Supreme Court.

But will this ruling make the biggest impact of the four on its respective jurisprudence?

Because of how the issue has been framed by the law’s challengers, it’s hard to say.

Namely, the law’s opponents have characterized the mandate as a congressional “power grab” to regulate inactivity, and in doing so, have impinged on a constitutionally-protected liberty.

Is the health care mandate an invasion of constitutionally-protected liberty?

That question was answered in 1905 by a unanimous Court in Jacobson v. Commonwealth of Massachusetts, upholding against a liberty argument the imposition of a fine for refusing to submit to a state-mandated smallpox vaccination. By refusing vaccination, Jacobson was endangering not only himself but others whom he might infect.

By refusing the much less intrusive and less intimate imposition of a requirement that one purchase health insurance if one can afford it, a person threatens to unravel – in the view of Congress and the health insurance industry, but Congress is enough – the whole scheme designed to protect by health insurance the largest part of the population.

That’s an excerpt from Senate testimony by Harvard Law professor Charles Fried, a self-professed “expert on constitutional law.”

Fried isn’t on the left side of the ideological spectrum, either: he served as President Ronald Reagan’s Solicitor General from 1985-1989, and has been a member of the Federalist Society “since its beginning.”

In spite of Fried’s conservative ideology, he maintains that the individual mandate is perfectly constitutional.

Though his entire testimony is definitely worth reading (it’s not very long), here’s how Fried sums it up:

  1. Insurance is commerce.
  2. Health insurance is undoubtedly commerce.
  3. Congress has the power to regulate commerce, and that means that Congress may prescribe… a rule for commerce.
  4. The health care mandate is a rule for commerce. And in any event it is a necessary and proper part of the particular regulation of health insurance that Congress chose to enact.

In dealing with the “inactivity” argument raised by the law’s opponents, Fried states that this distinction is irrelevant – nothing in the Constitution forbids the regulation of inactivity.

Although Fried still maintains that the choice to not purchase health insurance is not inactivity, the conservative Justices of the Supreme Court didn’t seem to agree with Fried during oral arguments.

 So, what if the Supreme Court struck down the individual mandate on the grounds that Congress cannot regulate economic inactivity?

At first glance, it may appear that, since the regulation of “inactivity” is so novel, the ruling would be very limited.

Nonetheless, it would set a dangerous precedent.

Though opponents may claim that the mandate only regulates the health insurance market, the mandate is part of a larger scheme that regulates the health care market as a whole.

The mandate and its sister provisions that require private health insurers to accept virtually all applicants regardless of preexisting conditions are key provisions in a law that Congress passed aiming to make the health care market more accessible and less expensive.

Without the mandate, the provisions affecting private insurers would be unworkable.

Without provisions guaranteeing insurance coverage to all Americans, the entire health care reform formulated by Congress falls apart.

Thus, for the Supreme Court to say that Congress cannot use a tool such as the mandate to regulate interstate commerce significantly limits congressional authority in the area – perhaps more so than any other limitation imposed by the Court in U.S. history.

So, to answer my opening question, yes, such a ruling would make the biggest jurisprudential impact.

Ironically, though the Court’s intent in making the ruling would be to tell Congress to start again from scratch, it is unlikely that Congress would be able to find a solution with its Commerce Clause powers so severely limited by the same ruling.