The Patient Protection and Affordable Care Act (PPACA), more commonly known as the health care reform bill, is facing fresh challenges from the GOP-controlled House, which voted last week to repeal the law. The vote caused a stir due to its political symbolism — but it won’t accomplish much more than that since Democrats control the Senate and President Obama wields veto power. Repealing the law can thus not come about through Congress, but only through defunding it or through court challenges.
On Dec. 13, U.S. District Judge Henry Hudson ruled the individual mandate provision of the law, which required all U.S. citizens to acquire health insurance, unconstitutional in Virginia v. Sebelius. There have been various challenges to the law’s constitutionality — such as the misrepresentation of the mandate’s penalty as a “tax” — but the majority of court challenges are pitted against the mandate itself. In light of this plan of attack, the constitutional arguments regarding this clause must be examined in their entirety.
First, the basics: The Constitution specifically enumerates Congress’ powers via Article I Section 8. Among these are the powers to regulate interstate commerce and make laws that are “necessary and proper” to execute “foregoing powers” — that is, pass additional laws to ensure that Congress’ enumerated powers are being implemented.
The law’s supporters argue that health care insurance is an interstate market and Congress has the power to do whatever it deems necessary to regulate said market. Therefore, the individual mandate, which is necessary for the successful implementation of universal health care via PPACA, is constitutional. It is true that the mandate is necessary for the law’s success, but the question is whether it is constitutionally “proper.”
It is interesting that the law’s supporters argue that the purchase of health insurance (which is restricted to in-state providers) for the purpose of paying for the services of a doctor (which are received within a single state) qualifies as interstate commerce. The irony is that one of the key propositions of Republicans in Congress, ignored by Democrats, eliminates this issue by allowing purchases across state lines. Critics may point out that insurance companies still operate in different states. While this is true, the critical point is that the mandate does not regulate those companies at all. Rather, it regulates individuals.
This regulation of individuals goes far beyond commerce. It does not even just seek to regulate the commercial actions of citizens, but instead seeks to prevent their inaction. The argument implies that even the inactivity of individuals impacts the insurance market, since premiums rise when healthy, low-risk customers choose to forgo insurance. This argument can be applied to, well, every market. Arbitrarily choosing not to purchase some product today inevitably affects tomorrow’s prices. This is a central characteristic of free markets, but that does not mean the government has the power to forcibly compel participation in every industry.
The administration noted in court that everybody participates in the health market at some point and their present inactivity costs taxpayers more in the long run since the government covers hospital visits that cannot be paid for. This misses the point that health insurance and health care are divisible entities. Abstention from the purchase of insurance does not mean non-participation in the health market. It simply implies that the services of a doctor, when needed, will be paid out of pocket. It is true that the government must subsidize indigent patients, but how is that different from any other essential good, like food or housing? Living in a welfare state means there is sure to be a subsidy relating to countless products or activities. Does this mean the federal government must micromanage the activities of everybody in the country for the purpose of promoting cheaper products or saving itself money in the long run? Isn’t the purpose of participation in free markets to be free?
Finally, it has become rather popular among liberals to cite a “precedent” supported by the Founding Fathers. A 1798 law, An Act for the Relief of Sick and Disabled Seamen, is cited as an early example of “government-run health care.” The difference is that this act merely requires a tax on members of a certain industry, whereas PPACA mandates all citizens, except those deemed exempt, purchase insurance or face a penalty. This may be a strong precedent for the power to tax, but not for compelling a purchase.
It is clear that contrary to their best rationalizations, PPACA’s supporters cannot morph the “necessary and proper” clause to “by whatever means necessary.” Commercial regulations must remain consistent with constitutional limitations. When the Supreme Court finally hears arguments, it should reverse the continuing, unprecedented growth of federal government into unlimited territory at the expense of personal liberty.
Joe Albanese is a freshman in the School of Foreign Service.
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