The New Health Dialogue

The purpose of the individual mandate – generally seen as the most politically divisive part of the Affordable Care Act – is to help insurance companies compensate for the new requirement that they cover everyone, even people with pre-existing conditions. It prevents people from just getting insurance when they get sick, while also broadening the insurance pool to include the young and healthy – traditionally a demographic less likely to buy insurance. This balances the "actuarial risk pool," and keeps insurance plans solvent.

Proponents justify the mandate with the Constitution’s Commerce Clause, which states, “[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”  The Commerce Clause serves as the basis for many of Congress’s fundamental activities, including guaranteeing civil rights, monopoly busting, and regulating labor standards such as the minimum wage.

Opponents argue that this novel interpretation of the Commerce Clause results in an unconstitutional regulation of inaction. A “slippery slope” rebuttal is often made, with some arguing that if the government can require the purchase of health insurance, nothing would stop it from requiring everyone buy broccoli or anything else things deemed beneficial to your health.

After the Affordable Care Act passed in 2010, a number of states and private organizations filed lawsuits accusing the law of being unconstitutional. Of those lawsuits, a handful remain undecided, including the state challenges by Virginia and Florida.

On June 29, a Michigan firm’s challenge to the law was shot down by the United States Court of Appeals for the Sixth Circuit in Cincinnati, who declared the Affordable Care Act’s individual mandate constitutional. Perhaps equally significant is the fact that it marked the first time a conservative judge ruled in favor of the law.

While the case – along with the similar cases currently moving through the legal system – is expected to head to the Supreme Court as soon as October, many see Judge Jeffrey Sutton’s concurring opinion as a key turning point in the legal discourse. A George W. Bush appointee, Judge Sutton took on the issue of whether or not the government is regulating inaction.

“Inaction is action, sometimes for better, sometimes for worse, when it comes to financial risk.”  Regarding the choices to purchase health insurance or not, Judge Sutton wrote, “one is no less active than the other; and both affect commerce.”

Judge Sutton goes on to make an analogy to businessman Warren Buffett’s stock trading, stating that sometimes, “the best thing he could have done is the informed, even masterful, inaction of saying no.”

While some view Judge Sutton’s opinion as sending a direct message to the Supreme Court’s conservative bloc and outlining a potential pro-ACA argument for Justices Roberts, Scalia, and Kennedy, opponents of the law see Judge Sutton’s overview of all the legal precedents differently. They view it as a prime opportunity for the Supreme Court to finally define the limits of the Commerce Clause on Congress.

Judge Sutton alludes to this, writing, “There is another way to look at these precedents — that the Court either should stop saying that a meaningful limit on Congress’s commerce powers exists or prove that it is so.”

In an article for Politico, Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute, refers to it as the “put up or shut up” dare to the Supreme Court.  He states, “If you’re going to strike this down, you’re going to have to define the limiting principle.”

Judge Sutton also comments on limiting judicial activism, writing, “Today’s debate about the individual mandate is just as stirring, no less essential to the appropriate role of the national government and no less capable of political resolution. Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation, allowing the peoples’ political representatives, rather than their judges, to have the primary say over its utility.”

But again - while the latest decision is a victory for Affordable Care Act proponents, an ideologically-divided Supreme Court will almost certainly make the final decision on the ACA's constitutionality. At this point, it's anyone's guess on how the justices will vote.

To read the official court documents, visit HealthReformGPS.org.