Guest Post by Saad Asad
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.