A mandate’s fate

Erwin Chemerinsky is dean of the UC Irvine School of Law.

Not surprisingly, the Supreme Court on Monday agreed to decide the constitutionality of the individual mandate in the Affordable Care Act, the healthcare reform package passed in 2010. Under current constitutional law, this should be an easy case to predict -- the law is clearly constitutional. But what complicates the decision and makes the result unpredictable is whether the justices will see the issue in terms of precedent or through the partisanship that has so dominated the public debate and most of the court decisions so far.

The primary issue before the Supreme Court is whether Congress’ power to regulate commerce among the states gives it the authority to require that individuals either purchase health insurance or pay a penalty. The Supreme Court has repeatedly held that under the commerce clause, Congress may regulate economic activity that, taken cumulatively across the country, has a substantial effect on interstate commerce.

Thus, under current law, there are two questions: First, is Congress regulating economic activity? Second, if so, looked at in the aggregate, is there a substantial effect on interstate commerce?

It is the former that opponents of the law, including judges who have struck it down, have focused on. They contend that people who do not wish to purchase health insurance are inactive and that Congress cannot regulate inactivity. They argue that it is unprecedented for Congress to require an economic transaction and that, if Congress can require purchasing of health insurance, there is no stopping point in terms of what Congress can force people to buy.


The key flaw in this argument is its failure to recognize that literally everyone at some point will use the healthcare system. Children must be vaccinated to attend school. If a person contracts certain communicable diseases, doctors must report them and the government can require treatment. If a person is in a car accident, the ambulance will take him or her to the nearest emergency room and medical care will be provided.

Therefore, even though it appears that some people are abstaining, in fact everyone is already making an “affirmative” active economic choice to purchase health insurance or to self-insure. The Affordable Care Act regulates this economic activity by imposing a penalty on those who choose to self-insure in order to create a system in which all can have access to the healthcare system.

The second question then becomes whether, taken cumulatively, the law has a substantial effect on interstate commerce. Health-related spending was $2.5 trillion in 2009, or 17.6% of the national economy. In the last case to deal with the scope of Congress’ commerce clause power, Gonzales vs. Raich in 2005, the court held that Congress constitutionally could criminally prohibit and punish cultivation and possession of a small amount of marijuana for personal medicinal use.

If Congress’ commerce clause powers allow it to prevent Angela Raich from growing a small amount of marijuana to offset the ill effects of chemotherapy, then surely it has the authority to regulate a $2-trillion industry.

Moreover and very importantly, Gonzales vs. Raich reaffirmed that Congress need only have a “rational basis” for believing that it is regulating economic activity that has a substantial effect on interstate commerce. It is inconceivable that it could be successfully argued that there is not a rational basis for believing that the individual mandate has a substantial effect on interstate commerce. Simply adding 50 million people to the rolls of those with healthcare coverage would have an enormous economic effect.

Why, then, so much uncertainty surrounding what the Supreme Court will do? The reactions to the Affordable Care Act have been almost entirely defined by partisanship. Every Republican in Congress voted against it. With two exceptions, every federal judge appointed by a Republican president has voted to strike down the law, and with one exception, every federal judge appointed by a Democratic president has voted to uphold it.

But shouldn’t we expect more of Supreme Court justices than this? Last Tuesday, one of the most conservative federal judges in the country, Laurence Silberman, on the U.S. Court of Appeals for the District of Columbia Circuit, wrote an opinion upholding the individual mandate and indicating that it was clearly constitutional, even if he personally thinks it goes too far.

Will even the conservative justices follow Silberman’s lead and apply well-established constitutional principles? Or will the conservatives on the court see this entirely in the partisan terms that have surrounded the Affordable Care Act from the outset? We’ll know by the end of June, and few Supreme Court decisions will be more important in the lives of people and for the country.