Is it June 28 yet?

by Adrianna McIntyre

Lately when people find out I’m heading to graduate school for health policy, they all ask the same question: “So, is the insurance mandate constitutional?” I’ve read the op-eds. I’ve spammed my Facebook wall with links (sorry, friends). I’ve listened to the oral arguments—twice. And I have a confession: I’m just not sure.

The controversy hinges on a very specific question: can the federal government compel citizens to purchase a private product (health insurance) through a non-tax financial penalty? I wanted to reason through this objectively, so I did what any normal person would do… I sketched a flow chart.

click for larger

Let’s accept the following (humor me if you don’t): 1. the penalty for failing to purchase health insurance is not a tax;* 2. health care / insurance are interstate commerce (subject to regulation under the Commerce Clause); 3. for the ACA to function as intended, the individual mandate is necessary. That brings us to the highlighted box. Deciding that the markets are “interstate commerce” doesn’t make doesn’t make any regulation inherently constitutional—regulation must be “necessary and proper.” Once the arguments get to the “proper” half, they get sticky. This is how I see it:

Is failing to purchase health insurance activity or inactivity?
Conventional wisdom suggests that failure to purchase health insurance is inactivity; those without insurance are not “in the market.” But consider, if just as a brief intellectual exercise, whether the choice not to purchase health insurance is activity. Failure to appear in court for a subpoena is a type of “inactivity” subject to penalty (for being in contempt of court). I don’t have any background in law, so I’m not certain how flawed this parallel is—if someone knows, please do share. But if the government can administer penalties for this failure to act, are there logical grounds for defining certain inactions as “activity?”

There’s another approach to this question. During oral arguments, Justice Ruth Bader Ginsburg described the choice not to purchase insurance—with intent to pay for necessary health expenditures out-of-pocket—as “self-insurance.”[page 14] By labeling the decision this way, can we call self-insurance active commerce subject to Congressional regulation?

Does Congress have the power to regulate inactivity?
If my arguments above are a flop, the next question is whether Congress has the authority to regulate inactivity. This is also framed as whether the government can “create commerce where previously no commerce existed.” The Commerce Clause arguments are predicated substantially on the Supreme Court ruling in a 1942 case, Wicker v. Filburn, which held that Congress could regulate the amount of wheat produced by farmers, even though “that may not be regarded as commerce.” Here’s the caveat: in that case, the court specifically referred to an “appellee’s activity.” Opponents point to this language as evidence that Congress doesn’t have a defined constitutional power to regulate inactivity.

However, in McCulloch v. Maryland (1819), the Supreme Court upheld the creation of the National Bank under the Commerce & Necessary and Proper Clauses, and the bank created commerce out of nothing. This authority is not stated in the Constitution. Under this precedent, Congress can exercise authority not explicitly defined in the text of the Constitution, and use the individual mandate to create commerce. But today’s case brings private citizens into the equation, so there’s certainly room for interpretation.

Does the difference between the “health care” and “health insurance” markets matter?
The distinction between the health care and health insurance markets wasn’t something I’d considered before the arguments. One rationale in defense of the Affordable Care Act is that everyone uses health care at some point; everyone is “in that market,” so it can be regulated through the mandate. Fair point,  perhaps. But I also found the following from Paul Clement’s argument thought-provoking: “The government can’t say that everybody is in [the health insurance] market. The whole problem is that everybody is not in that market, and they want to make everybody get into that market.”

I concede that the markets are distinct, but I’m reluctant to jump to the conclusion that distinct is the same thing as separable. Perhaps it can be described as a proxy relationship, where the insurance market is a proxy for the health care market. Can the government regulate one market through its proxy? Does the distinction even matter?

Can a limiting principle be defined?
There’s been a lot of fuss and bother about finding a “limiting principle” if the Supreme Court rules the minimum coverage provision constitutional. That is to say, if the federal government can compel citizens to buy health insurance, where does the power to force purchases of private products end? See also: the now-tired broccoli argument.

Despite broccoli being the hot-button issue of the debate, it’s the question that concerns me least. I have a general grasp on the economic differences between the markets for normal commodities and health care. Multiple thoughtful editorials (one, two, and three, to start) proposed limiting principles. If talented scholars can draw their own lines, surely Supreme Court justices can, too—but they still have to rationalize the first three questions before picking a principle.

Also, have you noticed that the mandate is consistently framed as either constitutional and good, or unconstitutional and bad? I feel off-kilter just for entertaining the possibility that it’s both unconstitutional and good. We know that there are “indisputably constitutional” alternatives. I think it logically follows that legislation can have unconstitutional means to a noble (and constitutional) end.

Let’s pause a moment to recognize something: this case is complex enough that we’re expecting a 5-4 split on the ruling. Maybe the talking heads are on to something that the Supreme Court isn’t, because pundits on TV seem to be much more confident in their opinions than our nation’s highest court.

The decision is expected to come down no later than June 28—although I keep hearing different dates on the Twittersphere (+1 for credibility). I’ll be sitting on the edge of my seat until then. Care to join me?

* Those opposed to the MCP argue that it’s unconstitutional under the tax power (as a direct tax), but clarifying that argument would require its own flow chart.

Adrianna works in clinical research and will begin graduate studies at the University of Michigan this fall.
Follow her on Twitter @onceuponA.

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