One Year Out: Can Congress regulate inactivity?

March 29, 2011

Healthcare(Editor’s Note: With March 30 being the one-year anniversary of the enactment of the Patient Protection and Affordable Care Act (PPACA) a.k.a. the 2010 Health Care Bill, or “Obamacare” depending on the source, we’ll be looking at the state of legal challenges to the law in a series of blogs throughout March.  Specifically, we’ll look at pertinent points of law that are at the center of any analysis of the law.)

The first installment on Judge Hudson’s Spending Clause discussion can be viewed here. The second installment on Judge Vinson’s Commerce Clause discussion can be viewed here.  The third installment on severability can be viewed here.

Over the past three weeks, we’ve looked at several issues central to the legal battle on health care reform.

When the issue reaches the Supreme Court, discussions about Congress’s power under both the Spending Clause and the Commerce Clause seem inevitable.

However, arguments on the Commerce Clause front will likely consume the most time.

This is mostly because Congress’s Spending Clause power is broad and the law is unlikely to be struck down on those grounds, and Spending Clause jurisprudence is fairly well-settled, with all precedent in the last 75 years favoring expanded congressional power.

If the law’s opponents can clear the Spending Clause hurdle (i.e. successfully argue that it does not apply), they can reach an argument on the Commerce Clause, their best chance of success at invalidating the law.

The central point of contention within the Commerce Clause argument is on “inactivity.”

Specifically, in regards to the Minimum Essential Coverage provision of the health care law, can Congress regulate it?

The law’s opponents claim that they cannot.

In support, opponents point to several Supreme Court decisions on congressional authority under the Commerce Clause, including U.S. v. Morrison, U.S. v. Lopez, and U.S. v. Comstock, to demonstrate that all Commerce Clause jurisprudence has only established that Congress may regulate activity.

Supporters of the law counter on several points

First, Congress has indeed regulated inactivity.  The strongest example given is the Superfund Act, which creates liability for landowners of contaminated property, regardless of the landowner’s hand in or knowledge of the contamination.

However, the comparison isn’t completely appropriate since landowner duties already existed under common law, and the Superfund Act simply added to them.

Nevertheless, their next argument is stronger: the Supreme Court has never established authority to regulate anything but activity because the Supreme Court has never had to rule on a case about inactivity before.

In all of the cases cited, the issue is not whether something is activity or whether Congress’s regulatory power is limited only to activity, it is whether something is within the constitutionally-stated bounds of “interstate commerce.”

US ConstitutionIn fact, “activity” is not found anywhere within the Commerce Clause (not to mention within Article I).

So while there’s no jurisprudence explicitly supporting it, nothing in the Constitution forbids it.

This leads into another of the supporters’ arguments: not buying health insurance is activity, because, they argue, everyone will participate in the health care system at some point, thus not purchasing health insurance is an active decision and thus is activity.

While that may be stretching the definition a bit, it raises an important point: virtually everyone will participate in the health care system at some point.

The decision to forgo insurance has resulted in cost burden shifts to hospitals and insurers, which in turn are shifted onto the consumer.

Does that sound like  “[c]ommerce…among the several [s]tates”?

Regardless, the issue truly is novel.

How the Supreme Court decides the case will establish brand new precedent on the issue, expanding or restricting congressional authority.

Of course, they could always punt the issue on obscure Spending Clause grounds and save themselves the trouble.

What do you think?  Does Congress have the power to compel individuals to purchase insurance under the Commerce Clause? Or is the Commerce Clause discussion moot since Congress has the power under the Taxing and Spending Clause?

How will the Supreme Court rule?