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A Simple Explanation of Why the Healthcare Mandate is Unconstitutional

Guest Post by Saad Asad

Photo by Steve Petteway, Collection of the Supreme Court of the United States. Via Wikimedia.

Photo by Steve Petteway, Collection of the Supreme Court of the United States. Via Wikimedia.

I wrote this piece a year ago for a class presentation. Before we accuse the Supreme Court of judicial activism if the mandate is struck down, it would be pertinent to at least understand a potential explanation why it is unconstitutional. The following is purposefully simplistic and short, so don’t expect a treatise:

The Patient Protection and Affordable Care Act of 2009 is an unprecedented legislation that forces American citizens to buy a specific product from private companies solely on the condition of being alive. From Gibbons v Ogden in 1844 to Gonzalez v Raich in 2005, it is clear that for Congress to regulate something under the commerce clause, then it must be an activity.  At immediate glance, not buying something cannot be an activity. If that was so, Congress would have the virtual authority to force Americans to buy broccoli too.

One could argue that the healthcare market is unique because everyone will eventually participate thus making it an activity. However, this is false since we know some people will never get terribly sick, others will rely on charity, and some will be cured through simple over-the-counter drugs. Further, the logical conclusion of this argument would be that Congress could force Americans to buy gym memberships because they might be unhealthy in the future. Moreover, any other market could be characterized in the same way. All of us will eventually participate in the transportation market whether we buy a car or buy shoes for walking. Certainly, that doesn’t mean Congress could force us to only buy Jordans.

Also, it is absurd to consider the economic decision of not buying something an activity. Every economic decision will affect price because of the nature of supply and demand. For example, if enough people choose not purchase cars, then the price of cars will change. Every single decision becomes an economic decision. One hour spent sleeping is an hour that could be spent not buying things or not working, hence an economic decision. If Congress’ power was interpreted so that it could regulate every economic decision, then they could mandate workers to get up earlier to spend more time at their job.

Thus, because the healthcare market is “special” argument is weak and economic decisions are not necessarily activities, it is clear that the Congress does not have the power to authorize the PPCA under the commerce clause since not buying health insurance is simply not an activity.

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4 Comments Post a comment
  1. Geoff Stanley #

    Before I respond, thank you for not calling it Obamacare.

    First of all, you claim that not everyone will participate in healthcare at some point, basically saying that there is a significant portion of Americans who never use healthcare any more involved than a bottle of aspirin. I seriously doubt this. But I’m not sure that that even matters – let’s say ten percent of Americans never use health insurance or get charity donations somehow to cover their healthcare costs. Are you one of those ten percent? How would you ever know? Do you think these hypothetical ten percent decide, when they are, say, 20 years old, that they will never get cancer, never need a brain tumor removed, or never get in a car accident and be sent to the ER? Do they have some agreement with a private charity that assures they will have their healthcare costs covered up to, say, $100,000? Ultimately, no one knows if they will ever need health care, or when they will need it, or how much it will cost. But when it does happen, they will need health care immediately, and it might cost tens or hundreds of thousands.

    Healthcare is a special kind of economic activity – you really don’t have much of a choice as to whether or not you ultimately participate in it. And there is no one out there who could reasonably state that they will refuse any future medical treatment – when your or your child’s life is on the line, biology simply won’t let you die without a fight.

    The rest of your argument, as far as I can tell, rests on the fear that if Congress gives itself the power to make us buy health insurance, it can make us buy anything. That is simply not true – as I and every non partisan economist would argue above, healthcare is clearly delineated from most other economic activities. Buying healthcare is not like buying broccoli or Air Jordans, and to equate the two is intellectually dishonest. It is entirely reasonable to expect never to buy broccoli or Air Jordans in your life. We don’t spend 18% of our GDP on broccoli or Air Jordans, and the cost of broccoli and Air Jordans have not been exceeding inflation for years. Air Jordans are not threatening to drag our economy down. There are not 50.7 million people without access to lifesaving treatment because of problems in the broccoli market. People don’t become critically ill, bankrupt or homeless because they didn’t buy Air Jordans in their 20s.

    So please stop making spurious and ideologically-motivated comparisons of the health insurance market to other, clearly different markets. Congress clearly has the right to regulate areas of the economy where laissez-faire is causing a great deal of damage. To quote the SCOTUS, Congress has the right “to deal directly and specifically with those forces which in its judgment should not be permitted to dislocate an important segment of our economy and to disrupt and burden interstate channels of commerce . . . . Congress under the commerce clause is not impotent to deal with what it may consider to be dire consequences of laissez-faire” (Sunshine Anthracite Coal Co. v. Adkins).

    By the way, I am not sure how exactly Gibbons v Ogden or Gonzalez v Reich (fed gov has the right to regulate marijuana?) is relevant. So I will further quote some highly relevant majority opinions by the SCOTUS (2):

    “Equally fundamental with the private right is that of the public to regulate it in the common interest. … Thus has this court from the early days affirmed that the power to promote the general welfare is inherent in government. … [N]o exercise of the legislative prerogative to regulate the conduct of the citizen [can be imagined] which will not to some extent abridge his liberty or affect his property. But subject only to constitutional restraint the private right must yield to the public need” (Nebbia v. New York, 1934, expressly referring to the power of Congress to promote the general welfare).

    We cannot have facetious quibbles about shoes and veggies every time there is a dire need for Congressional action. And I suspect the reason for these broccoli arguments is not an honest questioning of the mandate’s Constitutional merits but rather an election-year ploy to destroy the capstone achievement of the other party’s incumbent. I never heard the right or left wing bring this up when conservative Congressmen brought the mandate up as the free-market alternative to Clinton’s reform. It certainly never appeared as an argument against Mitt Romney’s Massachusetts healthcare reform. Nonpartisan experts largely agree on the constitutionality of the mandate (1) I would suggest that we as a nation be very careful about believing what partisan pundits spout without thoroughly questioning whether or not they are reasonable or fact-based. I would also exhort that we look to non partisan assessments when forming our opinions. It is difficult, thanks to a news media that likes attention-grabbing headlines like “Death panels!” and “Can Congress force you to eat broccoli?”, rather than boring, serious, in-depth discussions. It is also easy to live in an echo chamber, thanks to the proliferation of ideological blogs and the like that repeat what one another says until it sounds true.

    (1) http://www.bloomberg.com/news/2012-06-22/law-experts-say-health-measure-legal-as-some-doubt-court-agrees.html
    (2) http://www.justice.gov/olc/1stlady.htm#N_11_

    June 26, 2012
  2. admin #

    @Geoff Stanley
    The majority opinion in Gonzalez v Reich is typically used to support the PPACA’s constitutionality by offering precedent for federal regulation of private economic activity under the commerce clause, as even personal consumption affects the interstate market.

    While I think that the decision not to buy health insurance constitutes economic activity – and is subject to federal regulation – through its externalities, the question whether we have time for “facetious quibbles about shoes and veggies every time there is a dire need for Congressional action” is irrelevant. Laws must be constitutional, whether they’re urgently required or not. Questions about the PPACA’s constitutionality are important.

    So, the Heritage Foundation probably should have done a better job designing the individual mandate.

    -Taylor Marvin

    June 26, 2012
  3. Saad Asad #

    Thank you for your comment, Mr. Stanley.

    You first argument is that even if some people do not participate in the healthcare market, it is ultimately unknowable who this will be. Chief Justice Roberts, in the oral argument, provides a relevant analogy:

    “CHIEF JUSTICE ROBERTS: Well, the same, it seems to me, would be true say for the market in emergency services: police, fire, ambulance, roadside assistance, whatever. You don’t know when you’re going to need it; you’re not sure that you will. But the same is true for health care. You don’t know if you’re going to need a heart transplant or if you ever will. So there is a market there. To — in some extent, we all participate in it.
    So can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? You can just dial 911 no matter where you are?
    GENERAL VERRILLI: No, Mr. Chief Justice. think that’s different. It’s — We — I don’t think we think of that as a market. This is a market. This is market regulation. And in addition, you have a situation in this market not only where people enter involuntarily as to when they enter and won’t be able to control what they need when they enter but when they –

    CHIEF JUSTICE ROBERTS: It seems to me that’s the same as in my hypothetical. You don’t know when you’re going to need police assistance. You can’t predict the extent to emergency response that you’ll need. But when you do, and the government provides it. I thought that was an important part of your argument, that when you need health care, the government will make sure you get it. Well, when you need police assistance or fire assistance or ambulance assistance, the government is going to make sure to the best extent it can that you get it — get it.”

    This police/fire/ambulance situation exhibits the same uncertainties in the healthcare market, yet this easily justifies mandating cell phone purchases. Aren’t emergency services a large share of the GDP? Aren’t they costly? Aren’t they important life-saving measures? Surely, then, this case meets the criteria of uncertainty of market entrance and substantial effect on the economy. ‘Laissez-faire’ has failed to provide cell phones so Congress must act. Further, U.S. v. Lopez found the presence of economic effect of purchasing a gun was insufficient to justify regulation under the commerce clause. So, we have further reason to disregard the allegedly unique healthcare market allowing this type of regulation.
    The court cases you chose are very odd and are not typically used to support the mandate.

    Regarding Sunshine Antracite Coal Co. v. Adkins, the Court ruled in favor of the Coal Act allowing coal to be regulated and taxed. And in the other case, price controls for milk were allowed. Neither of these cases is similar to the nonactivity of not purchasing insurance.

    Also, Mr. Stanley, I have no ideological agenda to push. A single-payer system, I believe, would be fully constitutional.

    And Taylor, regarding Gonzalez v. Raich, the activity under question was still an ‘activity.’ The government can regulate economic activities and noneconomic activities, but the omission of purchasing insurance is not an activity.

    June 27, 2012
  4. admin #

    @Saad
    Matt Steinglass has a good discussion regarding limits to the commerce clause and the cell phone example. However, I think the most important limit on the commerce clause is a practical rather than legal one – politicians in favor of a law forcing Americans to eat broccoli would be thrown out of office. For a unique good like healthcare that’s less true.

    June 27, 2012

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