Four Constitutional Limits That the Minimum Coverage Provision Respects

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JUSTICE O'CONNOR: If this is covered, what's left of enumerated powers? What is there that Congress could not do, under this rubric, if you are correct?

GENERAL DAYS: Justice O'Connor, that certainly is a question that one might ask, but this Court has asked that question in a number of other circumstances, and rather than starting from the assumption that something was inherently local, it's looked at the degree to which Congress had a reasonable basis for extending its authority under the commerce power to regulate that particular activity. (1)

INTRODUCTION

The minimum coverage provision in the Patient Protection and Affordable Care Act (ACA) (2) requires most people lawfully living in the United States to obtain a certain level of health insurance coverage or pay a certain amount of money each year. (3) Constitutional critics of this "individual mandate" fall into two categories. Some critics make the sweeping assertion that if Congress can impose a mandate to obtain health insurance coverage, then Congress can impose any mandate--indeed, any Commerce Clause regulation--it wants on Americans, so that there is nothing left of the constitutional principle of a national government of limited, enumerated powers. Less implausibly, other critics insist that even if upholding the minimum coverage provision would not mean Congress could impose any mandate or other regulation it wants on Americans, Congress could at least impose whatever "economic" mandates it wants, including federal requirements to purchase specific kinds and quantities of food, transportation, housing, and insurance.

Supporters of the ACA tend to defend the minimum coverage provision by showing that its constitutionality follows from a correct application of contemporary doctrine concerning the Commerce Clause, the Necessary and Proper Clause, or the tax power. (4) These demonstrations are sufficiently persuasive that a number of prominent conservative jurists or scholars have deemed decisive at least one doctrinal argument in favor of the minimum coverage provision. (5) The Supreme Court of the United States, however, can change the governing doctrine. Accordingly, such demonstrations alone may not suffice to persuade five Justices to uphold the minimum coverage provision. For the provision to survive the Court's likely review in the wake of its invalidation by the United States Court of Appeals for the Eleventh Circuit, (6) defenders of the ACA's constitutionality may need to identify principled, judicially enforceable limits on the scope of Congress's enumerated powers that the minimum coverage provision respects. (7)

So far, however, the federal government's briefs shy away from endorsing specific limits on the Commerce Clause beyond what the Supreme Court itself has identified. (8) If anxiety about unlimited federal power attracts the attention of five Justices, they will take a hard look at what the government's limiting principles are.

The present situation brings to mind the oral argument in United States v. Lopez. (9) The Justices asked Solicitor General Drew Days a series of direct questions about the limits of the Commerce Clause. In response, General Days was unable or unwilling to identify a single hypothetical regulation that was beyond the scope of the commerce power. (10) Folk lore has it that his nonresponsive answers contributed to the federal government's 5-4 loss. (11) Whether or not that is true, his exchanges with the Court could not have helped the government's case.

In this essay, I identify four principled and judicially enforceable limits on the scope of the Commerce Clause that counsel upholding the constitutionality of the minimum coverage provision in the ACA. Under the restrictions imposed by these limits, Congress may not use its commerce power: (1) to regulate noneconomic subject matter; (2) to impose a regulation that violates constitutional rights, including the right to bodily integrity; (3) to regulate at all, including by imposing a mandate, unless it reasonably believes that the regulation will ameliorate a significant collective action problem involving multiple states; or (4) to impose an economic mandate unless it reasonably believes that other regulatory means would be less effective or more coercive. …