Election Watch: Voters should decide Obamacare

By Luke Freedman

Next week, the US Supreme Court will hear oral arguments in the lawsuit challenging the constitutionality of the Patient Protection and Affordable Care Act or “Obamacare.” The case centres on the central piece of the legislation known as the individual mandate, which requires citizens to buy health insurance or pay an annual tax equal to 2.5 per cent of their income.

There has been much public outcry about the mandate. Rick Santorum referred to the law as the single “greatest threat to American freedom,” and a recent poll found that two thirds  of Americans believe that requiring individuals to buy health insurance is unconstitutional.

Given the furor over Obamacare and the attention that the challenge is receiving, it would be natural to conclude that the case presents a very difficult constitutional question. This simply isn’t the case. The Affordable Care Act easily fits within the bounds of prescribed constitutional powers. One can debate whether the act is good policy, but this is a different question than whether it is legal or not. I can’t say for certain whether the Court will uphold the law, but striking it down would represent a sea change in constitutional law. In order to argue the law is invalid one must refute numerous convincing arguments.

First, the individual mandate can be seen as a straightforward exercise of the government’s power to impose taxes and spend for the general warfare. As Yale Law Professor Akhil Amar explains, Congress clearly can tax citizens and then use that money to buy health insurance for them. As such, it would be extremely strange if it couldn’t instead direct citizens to buy health insurance directly. Those who want to overturn Obamacare are in essence arguing that allowing individuals the freedom to choose which insurance plan to purchase renders the law unconstitutional. Objections to “Obamacare” are anti-tax, not anti-mandate. This might make a good political argument but it’s not a good legal one.

However, the heart of the constitutional debate surrounds the limits of the Commerce Clause. The Constitution gives Congress the power “to regulate commerce ... among the several states.” It would take a book to explicate past Commerce Clause jurisprudence, but it’s fair to say that the Supreme Court has been extremely deferential to Congress in defining what constitutes interstate commerce. Since its founding, the US has transitioned from an agrarian economy to an industrial one in which economic interdependence between the states has steadily increased. The Court has rightly allowed Congress the tools to deal with these new and changing circumstances fulfilling the words of the first Chief Justice, John Marshall, who proclaimed that the Constitution was “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs”

In 1942, the Supreme Court unanimously declared in Wickard v Filburn that Congress had the power to prevent a farmer from growing more than a given quota of wheat, even if the wheat never left his property. The majority opinion explained that even if the wheat was privately consumed it would still affect interstate commerce because Mr. Filburn would then not have to purchase wheat from other sources. If other farmers followed Mr. Filburn’s lead, there would be significantly less demand for wheat, and it would undermine the legislative objective of “driving up wheat prices in the wake of the Great Depression.”

A 2005 decision, Gonzales v Raich, affirmed that Congress has the authority to prohibit a state from allowing individuals to grow medicinal marijuana in their own home for private consumption. Justice Scalia agreed with the majority, citing the Necessary and Proper Clause of the Constitution which gives Congress the power to “make all Laws which shall be necessary and proper for carrying into Execution” its expressed powers. Scalia explained that Congress “may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.” In other words, Congress can regulate intrastate drug use since a failure to do so could undermine its ability to regulate the interstate market for illegal drugs.

It’s not difficult to see the relevance for the current health care case. The US spent more than $2.6 trillion on health expenditures in 2010, and health care policy has clear spill over effects between states. The choice of whether to buy insurance directly impacts the national health care market. Given its historical understanding, it should be obvious that the Commerce Clause provides sufficient power to justify the individual mandate.

Many opponents of the law have tried to focus on the distinction between activity and inactivity. Not buying insurance is not a form of economic activity they say, and the Commerce Clause does not allow for the regulation of inactivity. But, this argument doesn’t hold water. First, the Court has never distinguished between activity and inactivity. More importantly, not buying health insurance is very different from choosing not to buy a poodle or watch "Dancing with the Stars"; it’s a choice with substantial externalities.

Laurence Tribe explains that we cannot voluntarily opt out of health care services altogether: “virtually all of us swim in that stream at one time or another.” It’s not as if one can choose never to get sick. When the uninsured do fall ill, these costs are passed on to others. Emergency rooms are required by federal law to treat everyone regardless of whether they have insurance or not. The government then reimburses hospitals for these expenses and the burden falls on the taxpayers. The costs of this uncovered care totalled over $40 billion last year.

Further, when healthy individuals are allowed to opt out of the health care system, premiums increase dramatically. One of the goals of the Affordable Care Act was to prevent insurers from discriminating against those with pre-existing conditions. This can only work if insurance companies are able to pool the risk of  those with pre-existing conditions together with lower risk groups. If insurers are prohibited from denying coverage to those who are sick then without an individual mandate people will just wait until they become ill to buy insurance. 

At its heart, the individual mandate, the brainchild of the Heritage Foundation, reflects core conservative principles. It’s not based on the idea that the government should have the ability to regulate all aspect of one’s life; but rather the concept that one should take responsibility for decisions that impose burdens on others. When one can afford health insurance but chooses not to purchase it, there are reprecussions for the rest of society. To borrow the language of economics, the Affordable Care Act seeks to internalise these externalities. Given the economic consequences inflicted by the uninsured and the desire to extend coverage to the tens of millions of Americans without insurance, Congress was well within its power in concluding that the individual mandate was necessary and proper in achieving its larger goal of regulating and reforming the national health care system.

There are a few broader reasons for assuming the constitutionality of Obamacare. Fifty years ago, conservative legal scholar Alexander Bickel — who has been cited as an influence by both John Roberts and Samuel Alito — outlined the inherent tension between judicial review and democratic government based on the will of the majority. There has been much debate over how this "counter-majoritarian difficulty" should influence constitutional theory, but I do think it is especially relevant to the current health care case. The Affordable Care Act is an incredibly high profile piece of legislation that was championed by the President and passed by the most representative political body in the Union. It doesn’t simply reflect the will of a city council or a local law enforcement agency, but rather the judgment of a diverse cross section of political actors. As such, the Court should be reluctant to substitute its own views for those of Congress and the President.

I don't mean to suggest that the judiciary should refrain from striking down any major federal law. Obviously, each case is decided on its merits. But, there should be some deference to the political branch when it comes to deciding the fate of the most substantial legislative act in decades.

The current issue is further complicated by the contentious political climate surrounding health care reform. The majority of those decrying the law as unconstitutional are really much more interested in its policy implications than in any nuanced debate about federalism. A full throated embrace of the narrow conception of federal powers that many opponents of Obamacare seem to be calling for would bring into question the constitutionality of other well established and well liked federal legislation. Overturning Obamacare would likely mean one of two things: vastly reshaping Commerce Clause jurisprudence in response to a politically motivated attack on a particular law, or politicising the Court by finding a constitutionally suspect means of throwing out the law without threatening other popular pieces of legislation. Neither option is appealing.

Republicans were unable to block health care reform legislatively, so now they are trying to use the Constitution to promote their economic theories. Reasonable people can disagree about whether the Affordable Care Act provides an appropriate method for addressing the United States’ obviously problematic health care system, but these are disagreements that should be settled by elected officials, not judicial fiat. If you oppose Obamacare then vote for any of the GOP candidates who have promised to repeal it, but don't use the Courts as a means of circumventing the legislative process.

22 March 2012