Obamacare: Will It Withstand Constitutional Scrutiny?

The U.S. Supreme Court is now poised to review the Patient Protection and Affordable Care Act, better known as “Obamacare.” The nine Justices will hear oral arguments totaling an unprecedented five-and-a-half hours beginning on March 26, 2012 and concluding on March 28. The usual allocation of time for Supreme Court oral arguments is just 60 minutes—30 minutes for each side—and only in exceedingly important cases, like Bush v. Gore, which was to determine the outcome of a presidential election, does the court allow 90 minutes of argument. Though no cameras will be allowed to record the historic oral give-and-take, audio tapes of the proceedings will be provided on an expedited basis through the Court’s website due to (according to the Court) “the extraordinary public interest” in the case.

Why these unusual measures? Are the cases from the Circuits which are being reviewed really that important? The answer is a thundering, yes! Why?

The central feature of the Obamacare legislation under judicial scrutiny is something called the “individual mandate,” which would require virtually every American to annually purchase health insurance or pay a monetary penalty [Sect. 5000(A)(a)]. In one of the briefs, this newly created legal duty has been called a“wholly novel and potentially unbounded assertion of Congressional authority.”

Why did Congress create this new obligation on Americans regardless of whether they want or need health insurance? Put simply, Congress required insurance companies, elsewhere in the Act, to accept persons for coverage regardless of their current health or previous health conditions, and prohibited the companies from charging a higher premium that would normally be justified by a person’s higher health risk. (For instance, a higher premium for higher risks is the reason that one’s 16-year-old son causes the auto premium for the family car to substantially increase.)

To offset these unjustifiably low premiums charged to those less healthy, Congress agreed to force all Americans into insurance plans even if their health and age made going without coverage a risk they were willing to take. As one brief puts it, “the [individual] mandate’s predominant purpose and effect was … to conscript the uninsured to provide a $28-$39 billion annual subsidy to insurers and their customers.”

So, the individual mandate is a subsidization scheme, but is it constitutional?

When Congress acts, it must stay within the boundaries of certain enumerated powers listed in Article I, section 8 of the U.S. Constitution. One of those powers is the power to “regulate commerce among the several states.” The Obama administration’s position says that a person who fails to purchase insurance is engaged in interstate commerce. The administration relies heavily on Wickard v. Filburn—a 1942 case in which the Supreme Court gave a very expansive interpretation to that clause. There it concluded that an Ohio farmer’s growing of wheat on his own farm and feeding it to his own cattle constituted interstate commerce and was in contravention of a federal act that limited the right to plant wheat. All constitutional scholars recognizeWickard as an example of the broadest expansion of that clause.

However, the Obama administration wants to allow Congress to go even further. Constitutional advocates may be able to grudgingly accept the government’s claim that it can regulate economic activity, even exceedingly local activity. What friends of liberty cannot and should not accept is penalizing Americans for deciding not to engage in an economic transaction, that is, failing to purchase health insurance. Federal District Judge Roger Vinson put the issue this way in his opinion striking down the individual mandate: “Never before has Congress required that everyone buy a product from a private company (essentially for life) just for being alive and residing in the United States.” Actually, it is even worse than that, as Judge Vinson points out: under the mandate, one cannot purchase the minimum amount of insurance needed according to one’s own estimation of insurance needs but must purchase the “minimum level or type” established by Congress as “the floor.”

If the Court upholds the individual mandate, it would effectively mark an end to constitutional restraint on Congress and usher in a new era of uncertainty, one whereby the federal government would be controlled only by the self-restraint of elected legislators. The Court, as it were, will have let the constitutional reins fall loose and the federal stallion will gallop forward at an ever faster and more frightening pace.