This summer, the Supreme Court will decide whether Congress
violated the Constitution when it enacted the Patient Protection and
Affordable Care Act, which contains an "individual mandate"
requiring virtually every American to purchase health insurance.
Based on the Constitution's text and structure, and judicial
interpretations of the relevant provisions, the mandate should be
Twenty-six states, including Pennsylvania, have attacked the
ACA's constitutionality. They seek to uphold the Constitution's
basic division of power between the national government and state
The framers and those who ratified the Constitution withheld from
Congress a plenary police power to enact any law that it deems
desirable. Instead, the powers granted to Congress in Article I of
the Constitution are limited and enumerated. The Tenth Amendment
emphasizes this structure by affirming that all powers not given to
Congress "are reserved to the States respectively, or to the
Given that background, the states' argument against ACA is
simple: Even under the broadest interpretation, Congress's
enumerated powers do not authorize a federal law that forces
individuals to purchase health insurance.
ACA's defenders argue that Congress' authority to impose the
mandate is granted by any of three constitutional provisions: the
Commerce Clause, the Necessary and Proper Clause or the Taxing
Clause. However, under the original understanding of those
provisions and the more expansive interpretation given to them by
the Supreme Court in recent decades, the mandate is an unprecedented
assertion of federal control that violates the framers'
Under the Commerce Clause, Congress may regulate interstate
commerce. As originally understood, "interstate commerce" meant
cross-border trade or exchange, as distinguished from other types of
business activity such as manufacturing and agriculture. Subsequent
Supreme Court decisions have expanded the term to include instances
of intrastate "economic activity" if that activity, "viewed in the
aggregate, substantially affects" interstate commerce.
ACA's defenders argue that the law regulates economic activity
with a substantial effect on interstate commerce, namely the manner
in which individuals insure against their future purchase of health
care services. But the individual mandate does not regulate anyone's
ongoing activity -- those who are subject to it are strangers to the
insurance market. Rather, the law compels inactive, nonparticipants
in the health insurance market to purchase insurance so that they
can then be regulated.
As Congress itself said in the ACA, the mandate purports to
regulate each individual's "economic and financial decision" whether
to purchase health insurance. But if that is a valid exercise of
Commerce Clause power, then there is literally no end to Congress's
power over individuals.
Congress could require people to buy a car because refraining
from doing so is an "economic decision" substantially affecting the
automobile industry. …