'Obamacare' is constitutional. But will the Supreme Court care?

If the Court upholds constitutional precedent rather than judicial activism, it will throw out the lawsuit brought by McKenna and the other attorneys general.

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Consumers may be happy with the skill of their health care providers, but wind up unable to pay for the work if insurance doesn't provide expected coverage.

If the Court upholds constitutional precedent rather than judicial activism, it will throw out the lawsuit brought by McKenna and the other attorneys general.

It’s now a truism that the United States Supreme Court will ultimately decide the fate of health care reform. What’s not widely recognized is that, based on existing Supreme Court precedent, Congress clearly has the power to enact the Patient Protection and Affordable Care Act. 

The lawsuit challenging the Affordable Care Act originally filed by Attorney General McKenna and 12 other state attorneys general contends that the Act is unconstitutional in its entirety. The federal government, the Attorney Generals’ complaint states, lacks the constitutional power to regulate insurance, which is how most Americans pay for health care, because this is “the very type of police power the Constitution reserves to the States.” Therefore, they urge the court to declare “the entire Act unconstitutional.” 

But existing Supreme Court precedent makes clear that the Constitution, as interpreted for decades, doesn’t support this position. The State AGs’ lawsuit implicates a clause in the Constitution known as the Commerce Clause. This gives Congress the power to “regulate Commerce ... among the several States.” It’s the constitutional provision that allows Congress to pass laws governing business transacted across state lines.

To be exact, according to past Supreme Court decisions, the Commerce Clause empowers Congress to regulate “those activities that substantially affect interstate commerce.” Since shortly after the New Deal, the high court has interpreted the Commerce Clause as giving Congress very broad power to pass laws regulating business transacted across state lines.

From 1937 to 1994, the Supreme Court didn’t invalidate a single law as unconstitutional for exceeding the scope of Congress’s Commerce Power. In the only two cases since the New Deal in which the Court did declare that Congress had overstepped its power over commerce, the congressional actions in question were aimed at criminal behavior, not commerce. In the 1995 case United States v. Lopez, Congress tried to claim Commerce Clause authority to restrict gun possession near schools. In 2000, in United States v. Morrison, Congress tried to create a federal remedy for crimes targeting women. In both cases, one could agree that Congress should intervene in these types of crimes or not. But no one could seriously claim that the subject of the legislation was interstate commerce.

The Affordable Care Act doesn’t address criminal conduct, and it doesn’t take an active imagination to recognize that the regulation of how we pay for health care substantially affects interstate commerce. When we’re injured out of state, our insurers are still required to provide coverage. The minimum-coverage and guaranteed-issue provisions, which require everyone to buy insurance and prevent insurers from excluding people with preexisting conditions, are specifically intended to spread the costs of health care across the United States. Health insurance reform, which obviously is a major part of health care reform, would seem to be just the type of legislation the Constitution empowers Congress to enact.

Almost every constitutional scholar who’s analyzed the issue has concluded that, if precedent is followed, health care reform is constitutional. And so far, the majority of lower and intermediate courts have applied the Commerce Clause as broadly as it’s been interpreted by past Supreme Courts, and upheld the Affordable Care Act.

The first court of appeals in the country to address a challenge to the Affordable Care Act affirmed its constitutionality. In late June, the U.S. Court of Appeals for the Sixth Circuit noted that everyone, no matter his or her state, eventually gets sick and uses health care, and hospitals across the country are required by law to provide care regardless of ability to pay. Decisions by some to forego health insurance drive up the cost of insurance for others across the country. Therefore, the court reasoned, the choice to forego health insurance substantially affects interstate commerce.

Of the seven courts that have decided constitutional challenges to the Affordable Care Act, two trial courts struck down some or all of it. Both courts ruled that the minimum coverage requirement exceeded Congress’s Commerce Clause power because it purported to regulate inactivity rather than economic activity. They pointed out that in no past case has the Supreme Court addressed legislation where Congress attempted to use its Commerce Power to require individuals to purchase a good or service –in this case, minimum health care coverage. Regardless of the longevity of Commerce Clause precedent, they ruled that this case doesn’t fit within that precedent at all.

The Sixth Circuit Court of Appeals, along with most legal academics, didn’t find the distinction between economic activity and inactivity meaningful in determining whether behavior affects interstate commerce. The appeals court noted that the Commerce Clause doesn’t distinguish between activity and inactivity, and neither has any past Supreme Court. The court then circled back to the test for Congress’s Commerce Power, whether the regulated behavior substantially affects interstate commerce. It had no difficulty finding that individuals’ decisions to forego health insurance (to remain “inactive” in the market) increases everyone else’s health care costs. These individuals eventually get sick and receive uncompensated care. The cost of this care is then shifted to those citizens and employers across the country who purchase health insurance.

So if Supreme Court precedent is so clear, why did the 13 state attorneys general challenge the constitutionality of the Affordable Care Act?

The answer: It's not clear whether this Supreme Court will follow precedent. The AGs hope that the Supreme Court will overturn established precedent and rule that health care reform is beyond the constitutional power of Congress. And that’s not a vain hope. Just a few weeks ago, on August 12, a second U.S. court of appeals, in Florida, ruled that the minimum coverage requirement in the Affordable Care Act is indeed unconstitutional. Precedent, it held, simply didn’t apply. Without so much as mentioning its sister circuit’s opinion, the appeals court found the “economic mandate” to buy minimum health care coverage distinguished the Affordable Care Act from every other act of Congress ever to come before the Supreme Court.

It certainly is the prerogative of the AGs  to ask the Supreme Court to overturn established precedent. But they must also acknowledge that this is the very definition of judicial activism. As Chief Justice Roberts said during his confirmation hearings, “The proper exercise of the judicial role in our constitutional system requires a degree of institutional and personal modesty and humility.” These “proper” judicial attributes ensure continuity, so that the interpretation of the Constitution is not whipsawed by constantly changing political winds.

An examination of Supreme Court precedent shows that the attorneys general are asking the the Court to disregard Chief Justice Roberts’ words. It may be politically expedient for them to urge the high court to abandon the more than half-century-old “substantially affects” formula when it comes to the Affordable Care Act and its minimum coverage requirement. But there’s no contesting that they're pleading for judicial activism.


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