If we strip away all of the political rhetoric that surrounds the healthcare debate, and spurn the death panels and the government takeover, we are left with an essential constitutional question that went in front of the Supreme court this week. In my experience, not many people really understand what it is that is at the center of the health care case. The question is not whether the Affordable Care Act is a good idea or whether or not this is a government takeover of healthcare. The essential question regards the individual mandate, and is actually fairly simple and straightforward. Essentially, can the federal government require a citizen to buy a product?
The constitutional authority that the Obama administration is citing here arises out of the commerce clause in the Constitution that states that Congress has the power “to regulate commerce… among the several states.” This is also taken with the “necessary and proper” clause which states that Congress has the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States.” Essentially, the government’s argument is that it is necessary and proper for the federal government to regulate the healthcare market by requiring everyone to buy insurance.
The reasoning for this position is as follows: The healthcare market is unique in that everybody participates in it at some point. The statistic that was cited by the Solicitor General in oral arguments yesterday was that 97% of Americans go to the doctor within a 5 year period, and that nobody can know when they will have to enter the market. Those that do not purchase insurance will still be afforded care in an emergency situation and will be unable to pay the costs, and those costs are then passed along to everybody else in the marketplace. Justice Ginsburg cited a study that found that up to $1,000 of healthcare premium dollars for a family per year go to cover these uninsured costs. Therefore, a government that represents the public has an interest in requiring everybody to carry insurance and pay those costs up front. This mandate is necessary to properly and fairly regulate the commerce occurring in the healthcare marketplace.
The challengers to the law claim that this is a government overreach which does not operate within the bounds of the commerce clause. The essential issue to the challenge is twofold. One, is inaction actually action? That is, can the government regulate your decision to not buy insurance. And two, if the government can require you to buy insurance, what else can it require you to buy? In the first question, the challengers assert that the decision not to buy insurance is not “commerce” at all, and it is therefore excluded from being regulated by the government.
To the second point, the idea is that if the mandate to buy insurance is upheld, what does that open to door to? Can the government make it necessary to mandate that everyone buy broccoli to make everyone healthier to control healthcare costs? Or can the government require that everyone buy only Detroit cars so that it benefits American workers? It’s essentially a slippery slope argument, one that the government’s lawyers will have to negate.
So there is the (incredibly) basic look at the legal questions that are being tried at the Supreme Court as we speak. When the red-hot political conversation is removed from the equation, it all seems pretty simple doesn’t it?