Florida v HHS, a suit brought on behalf of 26 states challenging the constitutionality of the Affordable Care Act (ACA), is a crucial event—crucial because upholding the ACA is critical to the US Constitution and to a humane social policy, bringing America into the fold of civilized nations that guarantee affordable health care for all their people.
But it also is a crucial event in a historical presidential campaign. If the Supreme Court upholds the ACA, the Republican candidate will almost certainly make repeal of the law a leading issue in the election. If the Court strikes down part of the law, then it places President Obama in the unenviable position of explaining to the public how he intends to salvage his health care reform agenda. It also will require a Congress receptive to his proposals for restructuring that agenda.
Integral to the ACA’s conceptual design is the individual purchase mandate,1,2 which requires most individuals to pay an annual tax penalty if they do not have health insurance by 2014. Of all the constitutional questions raised by Florida v HHS, the mandate undoubtedly presents the consequential issue, with far-reaching constitutional and social policy implications.
The mandate, Congress’ method of ensuring that every lawful resident has health insurance, is also novel. It appears that Congress has never before mandated that individuals enter into a contract with a private company. The very idea that Congress could exercise this unprecedented power has provoked mostly (but not only) conservatives to recite a parade of such “horribles” as mandatory purchase of things that are good for individuals (such as broccoli or a fitness club membership) or good for society (environmentally friendly electric cars). Critics believe that individuals have the right to be left alone—to opt out of commerce and buy no insurance—and pay out-of-pocket costs or simply accept the consequences if they become ill.
The Commerce Power
The most obvious constitutional argument in favor of the mandate is that Congress has the power to regulate interstate commerce. Since Franklin Delano Roosevelt’s New Deal, the Court has almost invariably upheld Congress’ commerce power, and a decision to strike down the mandate, an exercise of the commerce power, would be unprecedented. Although the Court overturned federal statutes on commerce-clause grounds in 2 recent cases, these entailed congressional attempts to regulate noneconomic, social policy of a purely local character. In the ACA, Congress is clearly regulating economic activity—health insurance—with a broad interstate reach.
The states objecting to the individual mandate will have to show that it does not regulate national economic activity by demonstrating that an individual’s decision not to buy health insurance is a noneconomic, purely personal choice. But the mandate doesn’t force individuals to enter into the health care market; instead it regulates only the timing and manner in which they will pay for health services because virtually everyone will need health care at some time in his or her life. Uninsured individuals will pay out of pocket; rely on family; and cost-shift to hospitals, the insured, and taxpayers. Everyone knows that by law, if they become seriously ill or injured, they will receive care, often in an emergency department. And the costs of catastrophic care are so high, few could or would pay the cost themselves—even the rich.
Necessary and Proper?
Even if the Supreme Court holds that Congress lacks the commerce power to mandate the purchase of health insurance, the United States still has a compelling argument under the Constitution’s necessary and proper clause. This permits Congress to pass laws related to the exercise of federal powers.
The ACA fundamentally reforms the insurance market by requiring insurers to offer coverage to all applicants, prohibiting insurers from charging higher premiums based on preexisting conditions, and eliminating annual and lifetime dollar limits on coverage. These requirements are hugely popular because they ensure that everyone can purchase health insurance at an affordable cost even if they have a debilitating prior condition, such as a birth defect or cancer. And the mandate is necessary for these reforms to work because it ensures that health insurance spreads the risk across the entire population so there are enough healthy individuals to keep overall expenditures lower than premium costs.
If the mandate is necessary for effective implementation of a federal power, then critics are left with a fairly weak argument, that the mandate is improper. But the mandate is appropriate and proportionate to its objectives because it gives individuals a fair choice between purchasing insurance or paying a relatively modest tax penalty ($695 per individual up to a family maximum of $2085, or 2.5% of household income, whichever is greater) that is not arduous or intrusive, especially considering the effects of the uninsured on all others in society.
Critics of the individual purchase mandate also claim that if the Court upheld the mandate, there would be no limiting principle, meaning that Congress would then have the power to mandate that individuals enter into all sorts of private contracts or purchase products of Congress’ choosing (the broccoli argument). The Court could—and arguably should—apply its ruling to the set of facts in the case, making clear that it retains its oversight of congressional action and would review other more intrusive mandates in the future. If a mandate were to intrude on a truly private space, the Court has ample tools to strike it down. For example, if Congress were to require individuals to eat healthy food, engage in physical exercise, or refrain from risky activities that did no harm to others, the Court could strike such a mandate down as a violation of a fundamental freedom.
The legal, political, and policy stakes of the Supreme Court’s decision are huge. The Court, not for the first time (eg, Bush v Gore in 2000), could realistically influence the outcome of a presidential election. At the very least, it will shape the debates, the political ads, and the candidates’ messages.
Just as important, the Court is likely to dictate the short-term (maybe even the long-term) future of health care in America. Unless one of the political parties wins both houses of Congress and the Presidency, it is hard to imagine that any reform can succeed. The Court, therefore, could determine whether the United States grants full access to health insurance for all its lawful residents.
1. Gostin LO, Garcia KK. Affordable Care Act legislation: the Supreme Court and the future of health care reform. JAMA. 2012;307(4):369-370.
2. Gostin LO, Connors EE. Health care reform in transition. JAMA. 2010;303(12):1188-1189.
About the author: Lawrence Gostin is University Professor and Faculty Director, O’Neill Institute for National and Global Health Law, Georgetown University Law Center and Director of the World Health Organization Collaborating Center on Public Health Law and Human Rights.
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