This article originally appeared in the March 2011 Insurance and Reinsurance Committee Newsletter.
On March 23, 2010 the Patient Protection and Affordable Care Act (28) ("PPACA") became law. The PPACA focuses on reform of the health insurance market and attempts to provide better coverage for those with pre-existing conditions and improved prescription drug coverage in Medicare. It additionally extends the life of the Medicare Trust fund. However, its most notable and far reaching legislative mandate is its requirement that each American purchase health insurance. The PPACA has produced strong emotions across the political spectrum. Indeed, its passage into law was nearly a completely partisan affair. The PPACA passed the Senate on December 24, 2009, by a vote of 60-39 with all Democrats and independents voting for it and all Republicans voting against it. It passed the House of Representatives on March 21, 2010, by a vote of 219-212, with all 178
Republicans and 34 Democrats voting against it.
Since that time, no less than twenty-seven cases challenging the PPACA have been launched. As of the writing of this article, four of these cases have resulted in rulings from federal district courts. As is widely known, two of these rulings have declared the Minimum Essential Coverage Provision, or as it is more readily known, the "individual mandate," unconstitutional. (29)
In these two cases, Commonwealth and Florida, the plaintiffs have focused on the Commerce Clause of the U.S. Constitution. The Commerce Clause states that the United States Congress shall have power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." The issue here focuses on the second power--what is referred to as the "Interstate Commerce Clause."
Essentially, this portion of the Commerce Clause allows Congress to regulate intrastate activities that have close ties to or a substantial relationship or effect on commerce or as necessary and proper to effectuate other regulations of commerce. Over time, the Commerce Clause has been used by Congress as authority for its most expansive regulations. The "high water mark" for the Commerce Clause most likely came in the case of Gonzales v. Raich, (30) in which the Supreme Court voted to uphold federal laws against intrastate marijuana use because it was part of a genuine federal scheme to regulate interstate marijuana use.
The PPACA utilizes the Commerce Clause in a new way. Specifically at issue is the individual mandate because it requires all persons over age eighteen to purchase health insurance. Supporters of the individual mandate claim that it is necessary in order to render affordable the PPACA requirement that health insurers provide coverage for persons with pre-existing conditions without charging those persons a premium for coverage.
Commonwealth was the first case to hold the individual mandate unconstitutional. The holding focused on the historic expansion of the Commerce Clause via the individual mandate. Essentially, the court ruled that because the individual mandate does not focus on an activity "self-initiated" by an individual, the individual decision to "purchase--or decline to purchase--health insurance from a private provider is beyond the historical reach of the Commerce Clause...." (31) Stated differently, the court rejected the individual mandate because it regulates economic inactivity, as opposed to activity, and requires an individual to engage in an economic transaction with a private company (i.e., purchase health insurance). The court also rejected the Department of Justice's argument that the penalty for failure to comply with the individual mandate (which is part of the tax code) is a tax intended to raise revenue. (32) Instead, the court agreed with the Commonwealth of Virginia's argument that the penalty is the "exercise [of] prohibited police power to compel individuals to enter into private commercial transactions. …