Health Care Vs. The Commerce Clause
By Amy Gernon
Published: April 03 2012
The constitutionality of President Obama's principal health care reform, known as the Patient Protection and Affordable Care Act, has been debated in front of the ...
The Supreme Court heard three days of debate last week over the constitutionality of “Obamacare,” the popularized title for President Obama’s Patient Protection and Affordable Care Act (PPACA). The sticking points with PPACA come from what everyone is referring to as the “individual mandate,” the portion of bill that would require all Americans to purchase health insurance or pay a penalty beginning in 2014. Opponents of the mandate are calling the measure unconstitutional, citing the Commerce Clause of the 10th amendment. The ruling will determine three things: whether PPACA is constitutional at all, what elements make it unconstitutional, and whether a viable version of the bill can operate without all of its parts.
The interpretation of commerce clause effectively determines the scope of the federal government, and historically this law has been used to define the limits of federal power in a variety of cases. In 1942, the Court ruled in Wickard v. FIlburn that a federal regulation of wheat production for home use was constitutional because it would prevent over-production and unstable interstate markets. The first time the Court used the law to limit the power of the federal government was in the 1995 ruling of United States v. Lopez, where the Court found the federal law mandating “gun-free zones” on school grounds unconstitutional.
In terms of PPACA, opponents, even those who would argue that there are inequities in the current health care system that ought to be addressed, and that congress has the scope of power to regulate the health care system (which constitutes more than one-sixth of the national economy), say that the individual mandate goes too far and breaches the Commerce Clause. A popular turn of phrase among Justices and pundits alike has been, “What’s next, the government mandating the purchase of broccoli?”
Simon Lazarus, of the National Senior Citizens Law Center and a proponent of the bill, told Politico he doesn’t believe the disagreement is based on upholding a strict interpretation of the Commerce Clause. “This challenge is about the idea that the mandate is some kind of enormous interference with individual liberty,” Lazarus said.
Much of the news reports coming from the debate suggested that the Court was generally of the view that the individual mandate might fall out of reach of the Commerce Clause. Justice Samuel Alito provided the analogy of burial insurance, since after all, everyone will have to be buried or cremated at some point. Many have already countered this analogy saying that, unlike health insurance, there is no burial insurance crisis in the nation. More so, providing proper health care to living people should be more concerning than providing burials for the deceased.
Paul Begala, columnist for Newsweek, countered Chief Justice John Roberts assertion that the mandate could open the doors for Congress to force American citizens to purchase other things in preparation of an emergency situation, like cell phones. “I don’t know the answer to that question,” Begala writes, “But I do know this: Congress can force each of us to buy a gun,” referring to the Second Militia Act of 1972, by which all males between the ages of 18 and 34 were required to arm themselves with guns and other supplies, and were conscripted to local militias.
The judge everyone is tuned into appears to be Associate Justice Kennedy, who challenged Solicitor General Donald Verilli to find the limiting factor that would prevent the government from requiring people to buy other things. Kenndy’s line of questioning has been described less as an attack on Obamacare, and rather as looking for reassurance of the intent and impact of the bill. Justice Ruth Bader Ginsberg, among the most liberal on the bench, has pointed out that Congress already requires you to pay for Medicare and Social Security, whether we think we need it or not.
Brace yourself for a ton of speculation until the Court announces its ruling in June. Until then, the Court will spend the next two months privately deliberating the constitutionality of the individual mandate. It is still unclear whether the bill can be effective without the individual mandate in place, or what Congress’s next step would be if the Court finds it unconstitutional.
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