Mark D. White

Mark D. White

Even though Jonathan beat me to it, let me put my two cents in regarding today's 5-4 Supreme Court decision affirming the individual mandate in the Affordable Care Act a.k.a. Obamacare.

Pages 17-27 of Chief Justice Roberts' majority opinion contain a masterful counterargument to those who argued that the Commerce Clause justifies the individual mandate because a decision not to participate in the health insurance market affects that market.

The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him. (pp. 20-21)

He extends the argument, as many have done but even more have ridiculed, to other hypothethical mandates based on inactivity, such as not buying broccoli healthy foods:

Indeed, the Government’s logic would justify a mandatory purchase to solve almost any problem. … To consider a different example in the health care market, many Americans do not eat a balanced diet. That group makes up a larger percentage of the total population than those without health insurance. … The failure of that group to have a healthy diet increases health care costs, to agreater extent than the failure of the uninsured to purchase insurance. … Those increased costs are borne in part by other Americans who must pay more, just as the uninsured shift costs to the insured. … Congress addressed the insurance problem by ordering everyone to buy insurance. Under the Government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables. (pp. 22-23)

He sums up his point nicely here:

People, for reasons of their own, often fail to do thingsthat would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act. (p. 23)

He goes on to argue against most of the specific arguments for the individual mandate based on the Commerce Clause, including that everyone will eventually be involved or "active" in the market for health care, and that health care is a "unique product." But my favorite part has to be his dismissal of the application of the Necessary and Proper Clause, which many commentators have confused with an "ends justify the means" clause, but is nonetheless subject to Constitutional constraints:

Even if the individual mandate is "necessary" to the Act’s insurance reforms, such an expansion of federal power is not a "proper" means for making those reforms effective. … Just as the individual mandate cannot be sustained as a law regulating the substantial effects of the failure to purchase health insurance, neither can it be upheld as a “necessary and proper” component of the insurance reforms. The commerce power thus does not authorize the mandate. (p. 30)

But while he wins the ideological war against the justification of the individual mandate based on the Commerce Clause  and the Necessary and Proper Clause, he affirms the mandate by reinterpreting it under Congrress' taxation power, which is exactly what the drafters of the legislation wanted to avoid.

This just reaffirms the irony of the Obamacare: rather than simply propose universal health care financed by taxation, which would have been unquestionably Constitutional, the president and the Congress tried to square the circle, avoiding the "t" word by instead requiring a more personally intrusive and selective violation of individual rights, which was (of course) questionable. In a sense, Roberts did the other two branches' work for them, allowing them to avoid the taxation issue when writing, promoting, and passing the law, but ending up with a tax bill in the end.

Former Speaker Nancy Pelosi famously said that we'd know what was in the bill after we passed it. It turns out we didn't see how to read it until Chief Justice Roberts told us how.