The Commerce Clause Implications of the Individual Mandate under the Patient Protection and Affordable Care Act

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I. INTRODUCTION II. THE ARGUMENT THAT THE DECISION NOT TO   PURCHASE HEALTH INSURANCE IS NOT TO BE   TREATED AS AN ECONOMIC ACTIVITY BECAUSE   IT IS NOT CONNECTED TO ECONOMIC RISK-TAKING   SHOULD BE REJECTED AS A DENIAL OF ECONOMIC   REALITY AT THE PRACTICAL INTERACTIVE   MARKETPLACE LEVEL III. ON NOVEMBER 14, 2011, THE SUPREME COURT   DECIDED TO HEAR A CASE FROM FLORIDA   OBJECTING TO THE INDIVIDUAL MANDATE AS AN   UNCONSTITUTIONAL VIOLATION OF THE COMMERCE   CLAUSE: WHY THE SUPREME COURT SHOULD REVERSE   THAT CONCLUSION IV. CONCLUSION 

I. INTRODUCTION

In an effort to protect the national economy from the economic burden created by the expanding cost of healthcare, congress enacted legislation under the commerce clause (1) to compel or mandate specific people to engage in the economic activity of purchasing health insurance. (2) On June 28, 2012, four months after the primary focus of my Article was written, the Supreme Court held in National Federation of Independent Business v. Sebelius (3) that the federal mandate to buy private health insurance in the Patient Protection and Affordable Care Act (PPACA) is an unconstitutional exercise of the power of congress to regulate commerce. The individual mandate violates the commerce clause because it does not regulate existing commercial activity. (4) The mandate compels individuals to become active in commerce by buying a product, on the basis that their failure to do so affects interstate commerce. (5) Interpreting the Commerce Clause to allow Congress to regulate individuals specifically because they are doing nothing would release a new and potentially unlimited domain to congressional authority. (6)

PPACA's compulsion that particular individuals pay a financial penalty for not acquiring health insurance may reasonably be described as a tax. (7) Since the Constitution authorizes such a tax, it is not the role of the Supreme Court to forbid it, or to decide its wisdom or fairness. (8) Because the Federal Government does not have the power to command people to buy health insurance under the commerce clause, Section 5000A's individual mandate is not a valid exercise of the Commerce Power by Congress. However, Congress does have the power to impose a tax on those without health insurance and, therefore, the individual mandate is a valid and constitutional exercise of the power of Congress under the Taxing Clause. (9)

The Obama administration contends the individual mandate is "absolutely intertwined" with PPACA provisions prohibiting insurers from rejecting applicants as well as prohibiting insurers from taking into account an applicant's pre-existing conditions. (10) The fundamental focus of this Article is whether the decision not to buy individual health insurance as required by congress also qualifies as valid economic activity under the Commerce Clause. This question before the Court continues the modern battle regarding the scope of Congress's power under the Commerce Clause, and the battle regarding the regulation of economic activity continues, irrespective of the Supreme Court decision regarding PPACA, because of the continuing impact of the Supreme Court's holding in United States v. Lopez. (11)

In Lopez, the Court held that because a Gun Free School Zone Law went beyond the scope of Congress's power under the Commerce Clause, it was unconstitutional. (12) In a dissenting opinion in Lopez, Justice Souter correctly warned that it would be a serious mistake to think of the Supreme Court's holding as an insignificant event in Commerce Clause law. (13) Justice Souter appropriately articulated a position saying that the holding in Lopez could be the foundation for a substantial rollback of the commerce power that could endanger a world of federal commerce power, which his generation had continuously experienced. (14) However, Professor Richard Primus argues that the day of the big commerce clause rollback has not come. (15) From both a doctrinal and political perspective, all the drama regarding the Supreme Court's applicability of the Commerce Clause to PPACA is about whether now is the right time for the federal judiciary to rollback the commerce clause power of Congress. …