When Justices of the U.S. Supreme Court hear oral arguments this week on cases challenging President Obama’s national health care law, they will be asked to weigh several different constitutional questions.
When it comes to the mandate requiring individuals to purchase health insurance, Obama’s lawyers at the Department of Justice has advanced three basic constitutional defenses. First, they argue that it is a regulation of interstate commerce. Second, they argue that it is, in the Constitution’s words, “necessary and proper” to Congress’ ability to exercise its enumerated powers. Third, as a fallback, they argue that the mandate is actually a tax.
The Obama administration’s first and most crucial argument is that because health care is a national market, a person’s decision not to purchase insurance has broad economic effects on interstate commerce. Thus, they argue, the mandate is a legitimate exercise of Congress’s power to regulate interstate commerce under the Commerce Clause of Article I, Section 8 of the Constitution.
The other side — the 26 states led by Florida and the National Federation of Independent Business — counter this by arguing that the mandate is an unprecedented expansion of government regulatory power that goes far beyond the scope of the Commerce Clause.
What makes the mandate different is that it isn’t regulating actual commerce, but its absence. It compels individuals to purchase a product, thus forcing them to enter the stream of commerce.
If the federal government is able to compel activity, the challengers argue, then there would be no limits on Congressional power. Under the same legal logic, Congress could also force individuals to join a gym or eat broccoli.
In lower courts, the Obama administration has struggled to come up with a principle that would place limits on Congressional power if the mandate were upheld. Its legal team has settled on the idea that health care is “unique” in that everybody eventually needs it. The challengers have responded that the idea that an exception should be made in the case of health insurance is not a constitutionally limiting principle that judges can rely on to make future decisions.
As a companion to its Commerce Clause argument, the government argues that Congress has the power to mandate the purchase of insurance under the “Necessary and Proper” clause of the Constitution. This clause allows Congress to pass any law that aids it in fulfilling its enumerated powers — including the regulation of interstate commerce. But the challengers have argued that the Necessary and Proper Clause cannot simply be used as an escape hatch for the government to justify anything that cannot be independently justified under the Commerce Clause.
In case the Supreme Court doesn’t buy these first two defenses of the mandate, the Obama administration has crafted a fallback argument based on the idea that the provision is justified under Congressional power to impose taxes. This has been a politically thorny issue for the White House. Obama has argued explicitly that the mandate was not a tax, so as to claim that he kept his pledge not to raise taxes on those earning under $250,000.
From a legal standpoint, the administration has run into a number of problems convincing courts that the mandate should count as a tax. The mandate fine does not appear in the section of the health care law having to do with raising revenue, and any revenue it does raise is incidental to the primary function of the penalty, which is to enforce compliance with the mandate.
If the mandate is held up as constitutional on taxing grounds, it would arguably have more sweeping consequences than if it were upheld on the basis of the Commerce Clause. It would allow future Congresses to pass essentially any regulation of human behavior and justify it as a tax by attaching a small penalty for non-compliance.
Should the Supreme Court strike down the individual mandate, it will have to consider the question of “severability” — that is, whether the rest of the law must also be struck down, or whether it can stand on its own without the mandate
Beyond the mandate, the 26 states led by Florida will be challenging the constitutionality of another provision of the law, which forces states to expand their Medicaid programs at a huge financial cost. The Obama administration will argue that because states are already a part of the Medicaid program and accept federal money, they have to accept any conditions that come with it.
