Academic journal article Law and Contemporary Problems

Constitutional Mortality: Precedential Effects of Striking the Individual Mandate

Academic journal article Law and Contemporary Problems

Constitutional Mortality: Precedential Effects of Striking the Individual Mandate

Article excerpt

Defenders of health insurance reform might rightly claim that blood will be on the hands of a court that strikes down the Patient Protection and Affordable Care Act (ACA). (1) Because insurance is necessary for decent access to healthcare, some analysts estimate that being uninsured kills 20,000 or more people a year. (2) Considering that the ACA reduces the number of uninsured by more than half, (3) it stands to reason that eliminating the ACA could cost more than 10,000 lives a year. Even if only the individual mandate were stricken, thousands could die each year, according to estimates that the ensuing market chaos would cut the Act's insurance gains in half. (4)

As sobering as these statistics are, far more chilling is the loss of life that might result from the constitutional precedent that a negative ACA ruling could set. The challengers' chief argument is that the Commerce Clause confers no federal authority--no matter how dire the necessity--simply to mandate behavior, unconditioned on citizens engaging in some economic activity. This argument's frightening prospect is that this very power might someday be absolutely essential to saving a million or more lives, based on solid public health science, in the event of a catastrophic public health emergency.

Imagine, for instance, a pandemic similar to the 1918 influenza that killed over half a million Americans. (5) Public health authorities warn that, eventually, such an outbreak is a very real possibility, and could kill several times more people in the modern era. (6) Or consider a nuclear-reactor meltdown like that in Chernobyl, or that almost happened in Japan following recent earthquakes. Minimizing deaths from such disasters requires forceful federal action, but the precedent that ACA challengers seek might tie federal hands.

Insurance-mandate opponents fret over what vegetables the government might force them to purchase if the mandate were upheld. (7) But courts, rather than obsessing over slippery slopes toward ridiculous mandates, should be much more concerned about the high hurdles to appropriate federal health action that a nullifying precedent would erect. As Chief Justice Marshall first reminded us almost two centuries ago, ours is "a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs." (8)

State and local public health authorities historically have been the first line of defense against public health and natural disasters. (9) But, in the modern world, when local measures prove inadequate, the federal government wisely has contingency plans to take measures necessary to protect the public's health and safety. (10) The Public Health Service Act, for instance, allows the Surgeon General to provide for "the apprehension and examination of any individual reasonably believed to be infected with a communicable disease in a communicable stage and... to be a probable source of infection to individuals who... will be moving from a State to another State." (11) This authority covers not only those who are in active movement, but also those who might spread disease to people who travel. Thus, according to leading public health law authorities, "because virtually any infected person could be a source of infection to others who might be traveling from state to state, jurisdiction over quarantine and isolation is effectively concurrent between state and federal governments." (12)

Another source of emergency federal power is the Department of Homeland Security's "National Response Framework." It contains provisions for "catastrophic incidents," defined as "any natural or manmade incident... that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the population, infrastructure, environment, economy, national morale, and/or government functions." (13) The plan recognizes that a catastrophic incident "could result in sustained nationwide impacts over a prolonged period of time [that] almost immediately exceed[] resources normally available to State, tribal, local, and private-sector authorities in the impacted area. …

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