The federal government argues that three provisions of the Constitution -- the commerce clause, the tax clause and the "necessary and proper" clause -- authorize the health care mandate.
The commerce clause gives Congress authority to regulate interstate commerce. Since the s, Supreme Court decisions have interpreted the commerce clause broadly. But every previous case expanding the commerce power involved some sort of "economic activity," such as operating a business or consuming a product. Failure to purchase health insurance is neither commerce nor an interstate activity.
Indeed, it is the absence of commerce. If Congress could use that clause to regulate mere failure to buy a product on the grounds that such inaction has an economic effect, there would be no structural limits to its power. Any decision to do anything is necessarily a decision not to do something else that might have an economic effect.
If I spend an hour sleeping, I thereby choose not to spend it working or shopping. As the lower court decision in this case explained, the government's position "amounts to an argument that the mere fact of an individual's existence substantially affects interstate commerce, and therefore Congress may regulate them at every point of their life.
Read a transcript of Monday's Supreme Court arguments. Defenders of the insurance mandate claim that health care is a special case because everyone eventually uses it.
But this argument relies on shifting the focus from health insurance to health care. A similar rhetorical ploy can justify any other mandate, including even the "broccoli purchase mandate. But everyone participates in the market for food. Similarly, a mandate requiring all Americans to purchase a car can be justified because virtually everyone participates in the transportation market.
The fact that low-income individuals are exempted does not change this analysis. A fine for jaywalking would not become an income tax if low-income individuals were exempted from it. The same goes for a fine imposed for violation of a law requiring the purchase of health insurance. It is even more implausible to suggest that the mandate is an excise tax. Excise taxes apply to economic transactions or the use of property of some kind. For example, a tax on the sale of alcoholic beverages qualifies as an excise.
The individual mandate does not tax any kind of activity, use of property or economic transaction. It therefore cannot be an excise tax. If the mandate is not a tariff, impost, income tax, or excise tax, it is either a direct tax or no tax at all. And if it is a direct tax, it would be an unconstitutional one, because it is not apportioned among the states in proportion to population as the Constitution requires.
The federal government argues that requiring people to purchase health insurance is needed to ensure that people will not wait to buy health insurance until after they get sick, something they may be incentivized to do because the health care bill forbids insurance companies from turning away customers with preexisting conditions. In cases such as Printz v. United States in , the Court has emphasized that these are two separate requirements imposed by the Clause.
Congressional legislation must meet both. If the Clause allows Congress to adopt the individual mandate, the same logic would justify almost any other requirement Congress might impose on individuals, thereby gutting the principle of limited federal power.
After all, such a mandate can always be portrayed as part of a plan to regulate the relevant market. Thus, the broccoli mandate would be upheld as an effort to regulate the market in food, the auto purchase mandate as a regulation of the market in cars, and so on.
Lawyers are notorious for inventing imaginative but unrealistic slippery slope arguments. The slippery slope that would result from a decision upholding the individual mandate, however, is all too real. If Congress is given unconstrained authority to impose purchase mandates, many interest groups could follow where the health insurance industry has led.
There are numerous industry interest groups that would dearly love to get congressional legislation requiring people to buy their products. And Congress has a long history of enacting dubious interest group legislation. Indeed, the individual health insurance mandate was itself partly the result of such interest group pressure.
In a time of tight budget constraints, a purchase mandate has obvious attractions to politicians seeking to aid politically influential industries. A mandate can transfer money to the favored industry without requiring additional government spending or tax increases. It is difficult for the federal government to directly transfer as much money to an industry as it would by forcing millions of new customers to make purchases.
Moreover, there is a wide variety of ways that purchase mandates could be sold to the public. Congress need not admit that they are intended to help powerful interest groups at the expense of the general public. They could instead use the same justification for government bailouts of banks and auto manufacturers — stimulating the economy by helping a vital industry.
Forcing people to purchase broccoli or other food could also be defended as a public health measure. Indeed, paternalists have successfully advocated numerous coercive regulations on precisely those kinds of grounds. There is no reason why they could not use similar strategies to justify purchase mandates. Just as moralists once united with bootleggers to promote alcohol prohibition, paternalistic public health activists could unite with industry lobbyists to push through purchase mandates.
Finally, it is important to emphasize the sheer range of interests that come into play here. The logic of the pro-health care mandate argument can justify virtually any mandate to purchase or do anything. This opens the door to the machinations of an extraordinarily large number of interest groups.
White House Press Secretary Sarah Sanders said that the law will stay in place until the appeal process is completed. For the time being, open enrollment for is going forward as planned, although in 39 states, the deadline for the Affordable Care Act was Dec. Connecticut also expanded its enrollment deadline until Jan. To check the deadline for your state, visit the website of Healthcare.
People seeking certain kinds of insurance may still be able to apply. Some may also qualify to apply during the Special Enrollment Period. This applies to those who have missed the deadline because of a life event, such as getting married or divorced; experiencing a natural disaster; having a child; or the death of someone on their marketplace plan. In some ways, the Affordable Care Act is stronger than ever. The number of Americans without health insurance has fallen from The expansion of Medicaid in certain states also drove up enrollment, rising from The number of uninsured non-elderly Americans has dropped significantly since the Affordable Care Act was instituted— from more than 44 million in to 27 million in
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