Healthcare, Environmental Law, and the Supreme Court: An Analysis under the Commerce, Necessary and Proper, and Tax and Spending Clauses

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I. INTRODUCTION

II. BACKGROUND TO THE PPACA

III. THE COMMERCE CLAUSE, SEBELIUS, AND ENVIRONMENTAL LAW
     A. A Brief Background of Commerce Clause Jurisprudence
     B. Sebelius and the Commerce Clause
     C. Sebelius, the Commerce Clause, and Environmental Law

IV.  THE TAX CLAUSE, SEBELIUS, AND ENVIRONMENTAL LAW
V.   THE SPENDING CLAUSE, SEBELIUS, AND ENVIRONMENTAL LAW
VI.  CONCLUSION

I. INTRODUCTION

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals do not do an infinite number of things. (1)

On June 28, 2012, in National Federation of Independent Business v. Sebelius, the U.S. Supreme Court issued a wildly mixed and lengthy decision concerning the constitutionality of the 900-page Patient Protection and Affordable Care Act (PPACA). (2) Sebelius is a finite decision with infinite implications for the Commerce, Necessary and Proper, Tax, and Spending Clauses of the U.S. Constitution. The opinion's implications for federal environmental laws are the subject of this Essay.

While unlikely, Sebelius has the potential to reshape modern environmental law in three ways. First, the logical, if attenuated, extension of the Court's conclusion that the Commerce Clause does not permit Congress to compel individuals to purchase health insurance suggests some limits on the extent to which Congress may compel participation in certain pollution-control and abatement markets. Second, the basis for upholding the individual mandate--the threat of federal tax penalty--has the potential to provide additional constitutional justification for federal environmental laws. Lastly, the Court's decision that Congress cannot "compel" states to adopt the PPACA under threat of losing all Medicaid funding would seem to suggest further limits on the extent to which Congress may withhold funding from states that do not or cannot implement federal environmental laws. As this Essay explains, despite the potential for Sebelius to alter federal environmental law, the case is likely to have a limited impact.

Part II of this Essay provides a brief background to the PPACA. Part in contextualizes the Court's Commerce Clause discussion in Sebelius, stating that the Court's decision that inactivity does not fall within the reach of the Commerce Clause should have little if any effect on federal environmental laws. Part IV then considers the Court's determination that the Tax Clause provides independent constitutional authority to require that individuals procure health insurance. This component of Sebelius provides Congress with a minor degree of additional means to advance federal environmental laws. Part V explores the Court's constricted reading of the Spending Clause, noting that it has the most potential among the various holdings in Sebelius to adversely affect federal environmental laws that are implemented by means of cooperative federalism. Part VI concludes that although Sebelius may appear to present a threat to the constitutional underpinnings of federal environmental laws, the decision will likely leave this framework intact.

II BACKGROUND TO THE PPACA

About 50 million Americans are uninsured due to choice or circumstance, consuming in excess of $100 billion in healthcare services. (3) About 60% of the uninsured visit a physician or emergency room annually. (4) About one-third of these services derive no payment from the patient. (5)

Enacted in 2010, the PPACA contains two key provisions at issue in Sebelius. The first--known as the "individual mandate"--requires about 40 million uninsured Americans to purchase health insurance from a private company, subject to a penalty paid to the federal treasury in an amount ranging between about $700 and $1,500 for noncompliance. (6) Insurance companies, in turn, are required to tether the cost of coverage to community rates and must not deny coverage for most preexisting conditions. …