Editor’s note: A version of this article first appeared in the Pittsburgh Post-Gazette. Neither Porter nor his firm are involved in the ACA litigation.
This summer, the Supreme Court will decide whether Congress violated the Constitution when it enacted the Patient Protection and Affordable Care Act, which contains an “individual mandate” requiring virtually every American to purchase health insurance. Based on the Constitution’s text and structure, and judicial interpretations of the relevant provisions, the mandate should be struck down.
Pennsylvania is one of 26 states to have attacked the ACA’s constitutionality. They seek to uphold the Constitution’s basic division of power between the national government and state governments.
The framers and those who ratified the Constitution withheld from Congress a plenary police power to enact any law that it deems desirable. Instead, the powers granted to Congress in Article I of the Constitution are limited and enumerated. The 10th Amendment emphasizes this structure by affirming that all powers not given to Congress “are reserved to the States respectively, or to the people.”
Given that background, the states’ argument against ACA is simple: Even under the broadest interpretation, Congress’ enumerated powers do not authorize a federal law that forces individuals to purchase health insurance.
ACA’s defenders argue that Congress’ authority to impose the mandate is granted by any of three constitutional provisions: the Commerce Clause, the Necessary and Proper Clause, or the Taxing Clause. However, under the original understanding of those provisions and the more expansive interpretation given to them by the Supreme Court in recent decades, the mandate is an unprecedented assertion of federal control that violates the framers’ constitutional design.
Under the Commerce Clause, Congress may regulate interstate commerce. As originally understood, “interstate commerce” meant cross-border trade or exchange, as distinguished from other types of business activity such as manufacturing and agriculture. Subsequent Supreme Court decisions have expanded the term to include instances of intrastate “economic activity” if that activity, “viewed in the aggregate, substantially affects” interstate commerce.
ACA’s defenders argue that the law regulates economic activity with a substantial effect on interstate commerce, namely the manner in which individuals insure against their future purchase of healthcare services. But the individual mandate does not regulate anyone’s ongoing activity—those who are subject to it are strangers to the insurance market. Rather, the law compels inactive, nonparticipants in the health insurance market to purchase insurance so they can then be regulated.
As Congress itself said in the ACA, the mandate purports to regulate each individual’s “economic and financial decision” whether to purchase health insurance. But if that is a valid exercise of Commerce Clause power, then there is literally no end to Congress’ power over individuals.
Congress could require people to buy a car because refraining from doing so is an “economic decision” substantially affecting the automobile industry. Congress could require us to purchase a television or a computer because engaging in quiet reflection rather than watching TV or surfing the Internet is an “economic decision” that substantially affects national markets for entertainment and communication.
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