What is at stake in the case challenging the constitutionality of the Affordable Care Act (ACA), scheduled for oral argument in the Supreme Court in March? The challengers maintain that the case is about fundamental liberty, specifically our freedom not to be compelled to purchase things we don’t want. But that frame, while undoubtedly appealing to the radical libertarian strain in the Tea Party, is misleading. In fact, the only “liberty” that would be protected by a victory for the challengers is the freedom of insurance companies to discriminate against sick people.
The case is principally focused on the “individual mandate,” the law’s requirement that people who are not insured and can afford health insurance must buy it or pay a tax penalty. The federal government is a government of limited powers, and although Congress has the power to regulate interstate commerce, the challengers concede, if it can force people to “enter into commerce” in order to regulate them, then its powers are in effect unlimited. The reason Congress has never imposed such a mandate, they maintain, is that the power does not properly exist.
The Supreme Court deems the issue sufficiently serious to schedule an almost unprecedented five and a half hours of oral argument (it usually schedules a single hour). But the argument against the law is remarkably flimsy. Two of the country’s most conservative judges, Jeffrey Sutton of the Sixth Circuit and Laurence Silberman of the DC Circuit, were unable to find a valid argument against the law and voted to uphold it. Harvard law professor Charles Fried, Ronald Reagan’s solicitor general, has also said the law is plainly constitutional. It’s always dangerous to predict Supreme Court rulings on controversial cases, but if the Court applies its precedents faithfully, it should be a victory for the administration.
Although the challengers focus their attack on the individual mandate, that provision cannot be separated from the act’s prohibiting insurance companies from denying coverage or charging higher rates based on “pre-existing” medical conditions. No one contests Congress’s constitutional authority to enact that overwhelmingly popular protection from dubious insurance practices. But without the individual mandate, the nondiscrimination protection would be unworkable. People would have a powerful incentive to wait until they get sick before they buy insurance, because they could not be penalized for doing so. Such “free-riding” would defeat insurance’s purpose of spreading risk. As one expert told Congress, health insurance cannot work if people can delay buying it until they are on the way to the hospital. Several states have tried to prohibit discrimination against those with pre-existing conditions, but the reforms have failed everywhere they have been enacted without an individual mandate. (Only in Massachusetts, where the protection is coupled with a mandate, has the reform been sustainable.)
Conservatives are fond of reminding us that society involves not just rights but responsibilities. Yet here, they don’t seem to get it—the right afforded by the ACA will work only if it comes with the responsibility to purchase insurance if you can afford it. In the end, the challenge to “Obamacare” is not conservative at all; it’s radically libertarian.
We’ve seen this kind of libertarian constitutional argument before. In the early twentieth century, after the Industrial Revolution had concentrated economic power in employers’ hands, Congress and the states passed many laws designed to protect workers from exploitation. Time and again, the Supreme Court invalidated these statutes. It deemed the federal laws beyond Congress’s power to regulate interstate commerce because they were said to regulate the terms of production, manufacture or mining, all of which were said to precede interstate commerce. And it invalidated state labor laws as infringements on the “freedom of contract” protected by the due process clause.
In the wake of the Depression and the New Deal, however, the Court overruled both lines of precedent. It abandoned altogether the due process notion that economic regulation infringes on “freedom of contract”; it has never since invalidated any law on that ground. And it ruled that in our integrated national economy, Congress is entitled to regulate on the presumption that all economic activity, no matter how local, affects interstate commerce. On this theory, the Court in Wickard v. Filburn upheld federal limits on home-grown wheat never intended to be marketed at all, because home production would reduce demand and thereby affect the price of wheat. And in 2005, in Gonzales v. Raich, the Court upheld Congress’s power to ban home-grown marijuana even for personal medicinal use, on the theory that it furthered Congress’s regulation of the interstate marijuana market. Both Raich and Filburn sought to bypass the market by growing their own. Yet because their activity, when aggregated nationally, could have an effect on interstate commerce, it was within Congress’s regulatory authority.
The same holds true here. No one can guarantee that he or she will not need healthcare, and most people without insurance are unable to pay for the care they receive. As a result, they shift those costs to the rest of us, either because the government picks up the tab or because hospitals required to treat the sick regardless of ability to pay pass on the costs to others in higher fees. The uninsured thereby shift about $43 billion in costs each year to the rest of us, increasing the average premium for insured families by more than $1,000 a year.
Congress’s power to do something about these free-riders is strongly supported by precedent, on at least three independent theories. First, under the necessary and proper clause, Congress may pass laws that are not expressly authorized by the Constitution’s enumerated powers but that would be a “convenient” means to further the exercise of such a power. No one disputes that Congress has the authority to protect people with pre-existing conditions. The individual mandate is not only convenient but essential to make that protection work.
Second, like growing wheat, the decision to “self-insure” is an economic decision that, when aggregated, inevitably shifts costs to others and affects interstate commerce, and therefore may be regulated under the commerce clause. The law’s challengers concede that Congress could require people to pay for their healthcare with insurance at the point of consumption, as that would be a direct regulation of commerce. But if Congress can do that, there is no sensible principle that would bar it from doing so in advance, given the inevitability that we will all need healthcare.
Finally, Congress has the power to tax for the general welfare and need not tie its taxing provisions to any other enumerated power. As those who fail to purchase health insurance need only pay more income tax, the new law is an exercise of the taxing power and would be valid even if it were not authorized by the necessary and proper or commerce clauses.
The challengers seek to mask the weakness in their arguments by clothing them in the impassioned rhetoric of liberty. But they dare not actually argue that the ACA violates due process, the Constitution’s central protection of liberty. As noted above, that line of argument has been discredited since the New Deal. There is no dispute that states, which have broad authority to regulate in their citizens’ interest, could impose an individual mandate without running afoul of the Constitution. Massachusetts has already done so. Despite the rhetoric, then, the challengers’ argument is not really about the liberty to be free of regulation but about whether states or the federal government should have the power to regulate insurance. Viewed that way, there is simply no reason under the sun, much less in the Constitution, why the nationally integrated insurance market should be subject to regulation only by the individual states. It’s a matter of national interest, most appropriately addressed by Congress. Absent a revolution in constitutional jurisprudence, the Supreme Court should so rule.