When
Congress drafted the Patient Protection and Affordable Care Act (PPACA),
Democratic lawmakers and most legal scholars had good reason to be confident
of its constitutionality. Under long-established
precedent, Congress clearly has the authority, if wanted, to enact a
single-payer socialized insurance system using its powers
to tax and spend for the “general welfare.” Far
short of this, PPACA’s complex blend of regulations, subsidies, and
an individual mandate is vastly more protective of insurance markets
and individual freedoms than any “Medicare for All” scheme would
have been. The idea for an individual mandate originated with
Republican lawmakers, who never questioned its constitutionality until
now. Congress has nearly unbridled authority to regulate
products sold in or affecting interstate commerce, and health
insurance is clearly one such product.
Further, considering the well-understood economics of health insurance,
a mandate to obtain insurance is obviously part and parcel of regulating
how insurers design, price, and sell their products.
Something
went wrong on the way to the courthouse, however. District courts
in Virginia and Florida have ruled that Congress lacks the constitutional
authority to require legal residents to obtain health insurance.
Three other federal judges have upheld federal authority in cases that
special interest groups and individual litigants brought.
Despite
the split outcomes (which fell along the party lines of the judges’
appointing presidents), these courts agreed on several issues.
No court thus far has found a violation of individual rights protected
by the Bill of Rights, and no court so far has accepted (or indicated
much support for) the government’s position that Congress’s tax
power supports the mandate. In Florida
ex rel. McCollum v. U.S. Department of Health & Human Services,
the Northern District of Florida rejected the states’ arguments that
forcing them to implement key PPACA provisions violates the Tenth Amendment.
Thus the Commerce Clause and the ancillary Necessary and Proper Clause
will be the primary focus of ongoing litigation over the constitutionality
of health care reform. Conservative legal scholars who have previously
criticized the expansive scope of federal commerce power see in this
litigation the opportunity to impose new limits on its capaciousness.
Accordingly, the Commerce Clause arguments merit close attention in
order to understand their strengths, weaknesses, and implications for
other areas of constitutional doctrine and public policy.