"Can you create commerce, in order to regulate it?" - Justice Kennedy’s question to Solicitor General Donald Verrilli Jr. on Day 2 of ACA hearing back in March
Now I am not a constitutional scholar, nor am I a health policy expert. With that said though, I do have a few points to throw out there as an concerned citizen watcher on this issue for purposes of making some sense out of this riveting battle over federal power - one may suggest a new landmark ruling on commerce clause jurisprudence. This Thursday, the Court will decide on the constitutionality of the Affordable Care Act (ACA). Here are a few constitutional blah blah blah to think about:
1. Commerce Clause has been the main source of power that the federal government is citing in this case to enforce individual mandate as an integral part of the ACA. Wickard v. Filburn has been a case repeatedly cited by all big-government regulators as the “precedence” to expand federal power to regulate interstate commerce. Wickard established the so called aggregation principle, in which it essentially argues that small things add up, and so individual violations of a regulatory standard may undermine or defeat the purpose of the intended regulation itself, and thus cannot stand. Similarly applied, if individuals do not purchase health care insurance, then in the “aggregate” all of those without insurance, whether they choose to not purchase or they cannot afford to purchase, add to the burden of the health care system overall, transferring cost to others; and thus, according the Obama administration, this cannot stand, under the logical extension applied under Wickard.
2. However, following a more closer precedence set under United States v. Lopez (1995), commerce clause is construed to govern those activities that have substantial relations to interstate commerce and are economic in nature. The decision to not purchase health insurance is a form of inaction, inactivity that is not within the scope defined under Lopez. To characterize that the decision to not do something to be within the regulatory scope is expanding the reach of federal power indefinitely, which violates the principle of federalism that attempts to protect individual liberties.
3. Lastly, there exists a nuanced distinction between health care and health insurance. Amidst all the debate, this distinction is lost, and the two separate markets seem to mesh in the minds of the ACA constitutional advocates. One can consume health care without health insurance, albeit expensive under the current system. The individual mandate seems to mix the two markets into one broad regulatory provision: you have to buy insurance or pay a fine. Not every American is IN the health insurance market; though it can be argued that we all consume health care sometime in our lifetime. One does not need insurance to use emergency care or in similar life-and-death medical situations. The status quo is far from ideal - and expensive, but to prescribe individual mandate to solve the problem is not constitutionally sound. One does not need to buy automobile liability insurance, if one chooses not to be on the road. Therefore, the distinction between who is actually in which market matters to whether the government have the power to regulate under the Commerce Clause. In this case, the blanket mandate provision goes too far in regulating too broad a population, namely those not already in the health insurance market (hence Justice Kennedy’s question for the Solicitor General back in March)
These are not all the constitutional issues at hand. The Court will also explore the taxing power used by Congress in ACA in tomorrow’s ruling. Let’s hope that the justices are still on the side of liberty and freedom, who will honorably scream STOP to big government solutions that are seemingly innocuous in the short run.