Tyranny?


Two years after the Patient Protection and Affordable Care Act became law--and two years before many of its provisions are scheduled to go into effect--the Obama administration's most important achievement faces an uncertain prognosis.

The Republican presidential candidates have vowed to repeal the law, though Mitt Romney, the GOP's presumed nominee, has had trouble dispelling persistent rumors that "Obamacare" is the offspring of Romneycare, the state healthcare reform he backed as governor of Massachusetts. To avoid the embarrassment of acknowledging yet another politically expedient change of mind, Romney has made much of minor differences between the two laws. He has also claimed that, whatever the similarities, a system that works for states may not work for the federal government. But to most opponents of the Affordable Care Act, and to nearly all its supporters, this looks like a distinction without a difference. If, as some conservatives have claimed, it is tyrannical to require people to buy health insurance, why should it matter whether it's a state or federal requirement?

This is one of the questions now before the Supreme Court, which may overturn the Affordable Care Act before the Republicans have a chance to repeal it. In the last week of March, the Court heard oral arguments in a case challenging the constitutionality of the law's minimum-coverage provision, also known as the individual mandate. (The Court will issue its ruling in June.) Representing the twenty-six state attorneys general who claim the law is a violation of states rights, Paul Clement described the mandate as a radical departure and a dangerous precedent. Never before had the federal government made Americans buy something from a private company. And if it could make people buy health insurance, what couldn't it make them buy? The High Court's conservative Justices seemed impressed with this line of reasoning. They asked the lawyer in charge of defending the mandate, Solicitor General Donald Verrilli Jr., what would keep the government from requiring everyone to buy cell phones or broccoli (like health care, good for you) or burial services (death, like sickness, being unavoidable). In opposing the law, Clement argued that the Constitution's Commerce Clause allows the government to regulate only economic activity, not inactivity. That means it can set the terms for participation in the health-insurance market but not force people to participate.

In fact, this wouldn't be the first time the federal government has required people to buy something. It happened not long after the Constitution was ratified. …

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