If the Health Care Mandate is Unconstitutional, Then What?

CE.com ^ | March 30, 2012 | David J. Porter

[Salvation]

If the Health Care Mandate is Unconstitutional, Then What?

• Politics
• March 30th, 2012
• David J. Porter

Editor’s note: A version of this article first appeared in the Pittsburgh Post-Gazette. Neither Porter nor his firm are involved in the ACA litigation.

This summer, the Supreme Court will decide whether Congress violated the Constitution when it enacted the Patient Protection and Affordable Care Act, which contains an “individual mandate” requiring virtually every American to purchase health insurance. Based on the Constitution’s text and structure, and judicial interpretations of the relevant provisions, the mandate should be struck down.

Pennsylvania is one of 26 states to have attacked the ACA’s constitutionality. They seek to uphold the Constitution’s basic division of power between the national government and state governments.

The framers and those who ratified the Constitution withheld from Congress a plenary police power to enact any law that it deems desirable. Instead, the powers granted to Congress in Article I of the Constitution are limited and enumerated. The 10th Amendment emphasizes this structure by affirming that all powers not given to Congress “are reserved to the States respectively, or to the people.”

Given that background, the states’ argument against ACA is simple: Even under the broadest interpretation, Congress’ enumerated powers do not authorize a federal law that forces individuals to purchase health insurance.

ACA’s defenders argue that Congress’ authority to impose the mandate is granted by any of three constitutional provisions: the Commerce Clause, the Necessary and Proper Clause, or the Taxing Clause. However, under the original understanding of those provisions and the more expansive interpretation given to them by the Supreme Court in recent decades, the mandate is an unprecedented assertion of federal control that violates the framers’ constitutional design.

Under the Commerce Clause, Congress may regulate interstate commerce. As originally understood, “interstate commerce” meant cross-border trade or exchange, as distinguished from other types of business activity such as manufacturing and agriculture. Subsequent Supreme Court decisions have expanded the term to include instances of intrastate “economic activity” if that activity, “viewed in the aggregate, substantially affects” interstate commerce.

ACA’s defenders argue that the law regulates economic activity with a substantial effect on interstate commerce, namely the manner in which individuals insure against their future purchase of healthcare services. But the individual mandate does not regulate anyone’s ongoing activity—those who are subject to it are strangers to the insurance market. Rather, the law compels inactive, nonparticipants in the health insurance market to purchase insurance so they can then be regulated.

As Congress itself said in the ACA, the mandate purports to regulate each individual’s “economic and financial decision” whether to purchase health insurance. But if that is a valid exercise of Commerce Clause power, then there is literally no end to Congress’ power over individuals.

Congress could require people to buy a car because refraining from doing so is an “economic decision” substantially affecting the automobile industry. Congress could require us to purchase a television or a computer because engaging in quiet reflection rather than watching TV or surfing the Internet is an “economic decision” that substantially affects national markets for entertainment and communication.

The possibilities are endless, and these examples are not mere hyperbole. In the case on appeal to the Supreme Court, the federal government could not identify any mandate to purchase a product or service that would be unconstitutional under this elastic interpretation of the Commerce Clause.

ACA’s defenders also argue that the mandate is supported by the Necessary and Proper Clause, which gives Congress wide latitude to determine what laws are necessary for the implementation of Congress’ enumerated powers. Specifically, the mandate is allegedly necessary to allow for other regulations and price controls (such as a ban on considering pre-existing conditions) that otherwise render the law unworkable and threaten to destroy the health insurance market.

The problem with this argument is that the individual mandate is neither “necessary” nor “proper.” A law is not “proper” if it depends on a constitutional theory that gives Congress unbounded discretion to legislate in areas traditionally reserved to the states. And a law is not “necessary” unless it carries into execution another enumerated power, such as the power to regulate interstate commerce.

The ACA flunks both of these tests. Rather than enabling the exercise of an enumerated power, the mandate compels individuals to buy insurance in an attempt to suppress the ruinous effects of ACA’s other provisions. Don’t expect the Supreme Court to ignore constitutional limitations just because Congress claims an unenumerated power to offset regulatory burdens created by its own statute.

Finally, ACA’s defenders argue that even if the individual mandate is not supported by the Commerce Clause or the Necessary and Proper Clause, it is nevertheless constitutional because it is a tax. For example, the penalty for noncompliance is calculated as a percentage of household income for income tax purposes, and it is self-declared on the taxpayer’s income tax return.

Congress foreclosed this argument by separating the individual mandate from the penalty. The mandate itself offends the constitutional separation of powers; it cannot be saved by pointing to a penalty for noncompliance.

In any event, the monetary fine was deliberately structured as a “penalty” and not as a “tax.” Congress could have provided health insurance for all Americans by invoking its Article I power “[t]o lay and collect Taxes,” but following President Barack Obama’s lead, it refused to do so for political reasons.

The federal government’s Taxing Clause argument has been rejected by every court that has reviewed the ACA, and the Supreme Court is not likely to adopt it, either. Nor should it.

[Salvation]

If the Health Care Mandate is Unconstitutional, Then What?

[Salvation]

Comments, welcome.

[GlockThe Vote]

The entire argument is total bs since ObamaCare affects all medical care, not just the. ER issue. had congress imposed a small tax to cover ER reimbursements it would be totally legal.

a mandate like they passed is an abomination.

[garjog]

If the Health Care Mandate is Unconstitutional, Then What?

[E. Pluribus Unum]

Privatize the ENTIRE health care system.

Kick the federal government to the curb, and imprison any government official who attempts to exert any authority over it.

Everything the federal government touches gets astronomically expensive, and dismally inferior.

Post office. Public schools. Anything you can name, the federal government can screw up.

[cripplecreek]

I think we listen to Harry Roid on this one. He says that if its overturned, there’s nothing stopping the overturning of the interstate commerce clause.

[FedsRStealingOurCountryFromUs]

‘Single Payer System’ by Executive Order before November, that’s what.

[musicman]

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[oldtimer]

The Interstate Commerce clause set the stage for
Statism, and the loss of freedoms.

[mek1959]

If Obamacare is unconstitutional, then so is just about 90% of everything else they do.

The Lords of the Potomac are in a pickle on this one...overturn it and the whole fraud of a national government and both parties come down. Uphold it, and there might be the first hint of rebellion amongst the States. We’ll see.

[Talisker]

If the Health Care Mandate is Unconstitutional, Then What?

If the Leftists fail in their attempt to enslave everyone, then what?

WHAT shall we do if we fail to be enslaved?

HOW shall we replace this enslavement?

WHERE can we go to find an effective substitute for this enslavement?

HOW MUCH will it cost for us to purchase this level of enslavement on our own?

WHAT will the poor do, without this enslavement being provided for them?

HOW will women and children make up for this loss of enslavement?

Enquiring Minds Want To Know!

[unkus]

The Lords of the Potomac are in a pickle on this one...overturn it and the whole fraud of a national government and both parties come down. Uphold it, and there might be the first hint of rebellion amongst the States. We’ll see.

---

Very true.

[U-238]

It is thrown in the asheap of U.S. history

[Deagle]

Depends upon the question?

Really, do you think that food is a right? Do you think that water is a right, is housing a right?

Health care is really no different from the above, it is just the latest in the line of Liberal rights.

It use to be that man fended for himself and suffered the consequences of bad choices. Today it seems that we are to be protected from bad choices.

It boils down to what you want for Americans. Do you want protection from you own choices (housing, food, and healthcare) or do you want Freedom? It really is a choice these days even if you don’t realize it.

You can become a ward of the State or you can be free. What is it that you really want??

[skinkinthegrass]

that's very easy; he'll reject the USSC's lawful interpretation
(that's only your opinion) and continue his marxtist programs.
"I'm the law (the chief excutive :) & you have no real (police :) power."

[wastedpotential]

If SCOTUS goes by a strict interpretation of the constitution and the law itself, then the individual mandate to purchase insurance is found unconstitutional, and the way the law is written, the entire law is sent back to the legislature for review.

If they are not going by those standards, then anything could happen from nothing to giving us the same law without the individual mandate, to stating that the feds have the responsibility under the ICC to take over health care and institute a single payer system.

[Salvation]

**Privatize the ENTIRE health care system.**

Oh, I like your answer!

[Aria]

I say our hospitals invoice Mexico and the other countries for treating their illegals. Maybe the US government should deduct the amounts from their foreign aid checks.

Sort of like the unions expect the employers to be their dues collection agency.

We do too damn much for free - Iraq, Afghanistan (not that they have anything) protect Europe...enough is enough.

[Salvation]

A great perspective to look at Obamacare with. Thanks.

[Sivad]

Here is what a bright POTUS might have done from
the start.

1. Postpone the healthcare issue until after the
economic issues had been addressed.

2. Do not demonize insurance companies which are
legal businesses.

3. Call together all the insurance company CEOs to
participate in a group meeting where the Pres outlines
healthcare insurance issues which need to be addressed.
(i.e. portability, pre-existing conditions, etc)

4. Ask the insurance company CEOs to decide what
they need to be able provide universal coverage and
still maintain a desirable profit. (i.e. sell poli-
cies across state lines, tort reform, etc)

5. In a bi-partisan way work with the insurance com-
panies and the states to come up with legislation
that will provide the best system possible.

[Salvation]

Do you really think Obama would reject the Supreme Court’s decision to throw out Obamacare.

I was always taught that we have three wings of government to balance each other on issues.

Is that not true anymore?

Are the founding fathers rolling over in their graves over this?

[Graewoulf]

BUMP!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

______________________

The Liberals always gravitate to the greatest heart-tug parts of our society. Zipper-Boy Clinton and Hilly chose Hillary”care,” and when that failed and gave Newt a huge mid-term National election victory, Zipper-Boy Clinton chose teenage smoking. (As if Federal Regulations are more effective with teenagers that parents’ rules).

Now Dictator Baby-Doc Barack is having his personal medical money pit boondoggle examined by maybe 5 of THE NINE SUPREMES.

The Fecal Federal Finger has turned all that it touches into Demoshi_.

No known Welfare Program that the Feds have started in the last 85 years is currently out of Debt. All have been financial disasters.

Medicine and Government do not mix.

It is time to privatize all Medical, Health and heart-tugging Welfare programs in the Federal Government.

BTW, Algae-Man Obama should be stripped of “investing” in his green-energy boondoggles.

[skinkinthegrass]

Yes...they are rolling in their graves, your points are well taken.
OBozo, shall keep pushing his marxist programs until someone
forcefully stops him...the congress/courts don't have the balls....yet.

[entropy12]

I am against paying any tax to cover the unpaid hospital bills by slackers. Whatever happened to self reliance and responsibility?

[sickoflibs]

We have to wait to see exactly what they throw out.

Dems argument is that all Americans are part of the health care market because they (we) all will need health care sooner or later. More specifically, if they don't pay for health insurance now via a mandate they will get it for free anyway due to federal laws forcing others to pay, all of which are popular.

The bottom line is that the government gives out something (paid with borrowed money, or with a mandate for others to give it) for free, and that is very popular with voters only a fraction of which are getting it; and then they turn around and claim it is a rationale to run our lives. Not free after all.

Note that Republicans go along with the free-bee part. That is the weakness.

[SunkenCiv]

Thanks sickoflibs.

[Razzz42]

In there some reason I can’t just pay cash for a visit to the doctor’s or to the hospital? Usually a very good discount for paying cash.

[FrankR]

I keep hearing this lament, and each time I think, "didn't we have a good health system BEFORE obama?".

It's like saying, "What do we do if we have a flat tire?"...well, we CHANGE IT, and keep on going.

The Catastrophe would be to leave obamacare intact, and lose all of our freedoms, not to mention have that lousy Socialized Medicine and the death panels.

I don't know what it will take, but ANYTHING will be better than obamacare.

It's the media kicking up a dust storm so we can't see ahead...it will be just fine, ignore those unbathed journalists and just go on with your lives.

The majority of Americans want obamacare repealled, so be it. Washington and the media are the only ones that are clueless...Americans will figure it out and sort it all out.

[freekitty]

they should declare the thing unconstitutional. The Supreme Court should act for the people not for politics. Kagen should be excused.

[RWB Patriot]

“The possibilities are endless, and these examples are not mere hyperbole. In the case on appeal to the Supreme Court, the federal government could not identify any mandate to purchase a product or service that would be unconstitutional under this elastic interpretation of the Commerce Clause.”

Anybody else getting the feeling that this is what the whole point of the law has always been about: near dictatorial powers for the federal government, with universal health care just the bleeding heart cause to hide behind?

In most discussions on it, I’ve noticed supporters mainly focus on the “everyone is entitled to health care” idea being pushed, with few even considering what broader effects the individual mandate would have on the relationship between the people and the government.

[Caipirabob]

If the Health Care Mandate is Unconstitutional, Then What?

The oceans recede and the earth begins to heal?

[GOPJ]

There are people who die in their sleep.

They don’t need expensive health care.

There are people who jump on community watch persons and bash their heads into concrete. The guy getting bashed needs health care - the one doing the bashing doesn’t... Sometimes it’s reversed.

Fatal car accidents? Not everyone needs or will ever use extreme health care.

[JimRed]

It cuts off funding for Obama’s private army.

[stephenjohnbanker]

A couple of intangibles..

1) SCOTUS was ridiculed in public, by Obama

2) SCOTUS knows that O care will bankrupt the nation,

3) The oral arguments by Obama’s advocates were pathetic.

4)Dirty deals were made and done by the Dems to pass it.

5) Many corporations, and some unions exempted after the fact.

6) It would mean the govt. can control anything they choose to.

6)

[Gilbo_3]

and the 'shell' is already in place, agencies built and manned, and the end game was NEVER the 'mandate', but single payer, domination by gov...

those troops and funding schemes will be rolled along/into something else, as the next phase of the OP, pre-written and ready to submit, is already warming up in the bullpen...

*our* team is still stalled at the airport and cant even find the stadium...

[stephenjohnbanker]

” and the ‘shell’ is already in place, agencies built and manned, and the end game was NEVER the ‘mandate’, but single payer, domination by gov...”

Yep. I believe the entire O care will get tossed, then we have a CHANCE to stop the momentum.

[gitmo]

Interesting. Reid things SCOTUS will find the Constitution unconstitutional. He’s such a genius.

[gitmo]

Good article. Thanks.

[Gilbo_3]

entire O care will get tossed

whats the diff ??? as of today, right now, the house has refused to allocat the cash to establish/maintain those parts that are already in place...and those parts continue forward w/o skipping a beat...

burn the entire 2700 pages of it, and the poison will still be pumping thru our veins in DC...sure theyll have to rename a few things and issue new directives for those groups [same $h!t/diff wording] which will, in turn get a day in court, or not, to be further entrenched and re-arranged until the agenda is complete...

wash, rinse, repeat is the commie playbook...it never dies, like a zombie, it keeps coming until you dismember the entity...

[stephenjohnbanker]

” wash, rinse, repeat is the commie playbook...it never dies, like a zombie, it keeps coming until you dismember the entity... “

And IMO Obama is a commie. Pelosi is too, and Reid is a former gangster....nice crew