The constitutional debate over the Affordable Care Act revisits the question of how government should balance protecting its citizens while ensuring individual freedoms.
The question has not centered on the entire reform package, but rather a core provision mandating that nearly every American purchase health insurance.
At issue is the U.S. Constitution’s Commerce Clause, which gives Congress the power to regulate commerce among the states. The clause is silent on inactivity, which in this case describes a person’s decision not to purchase health insurance. The Supreme Court has never ruled on the regulation of inactivity.
Proponents argue mandated health insurance falls under the Commerce Clause due to its vast economic impact.
As the argument goes, Congress can require individuals to purchase insurance because everyone uses health care at some point. By forgoing insurance, a person is either electing to pay for medical costs out-of-pocket or forcing others to pay for his or her care, and both of these outcomes affect interstate commerce.
The latter option is far more widespread. An estimated 50 million Americans lack basic health insurance, and treating the uninsured costs hospitals and taxpayers approximately $43 billion a year, which in turn raises the cost of premiums for everybody.
“There’s nothing in the Commerce Clause that says Congress can’t do it this way,” says Leslie Gielow Jacobs, a professor of constitutional law at Pacific McGeorge School of Law. “To the contrary, the Constitution explicitly grants Congress the power to make all laws which are necessary and proper to achieve one of its enumerated powers, like regulating interstate commerce.”
Opponents assert the Commerce Clause only extends to products already purchased. The government can modify or ban a product, they argue, but it can’t force people to buy it.
“If the federal government could compel us to do something, then the Founding Fathers would have said so,” says Timothy Sandefur, principle attorney at the Pacific Legal Foundation, a conservative Sacramento-based organization.
Throughout courtrooms across the nation, rulings have generally followed party lines: Judges with conservative reputations have found the law unconstitutional; liberals have upheld it.
Similarly, Republican leaders in 28 states objected to the law. However, California — despite having a Republican governor in office last year — became the first state to begin implementing the Affordable Care Act.
The fundamental concern from the right is that requiring people to purchase items due to their economic implication creates a dangerous precedent. The position has been called the ‘broccoli argument’ after a federal judge in Florida suggested a Congress that can mandate health insurance could conceivably mandate the purchase of broccoli because vegetables also promote health.
“Are we going to have a government of law that limits government power and protects liberty, or are we going to have a government where elected representatives can do whatever they want to us?” Sandefur asks. “It’s very clear that the Founding Fathers chose the former.”
Not so, says Jacobs from McGeorge. The people, not the Constitution, limit the government’s powers, she says.
“The bottom line is that Congress is not going to force people to buy broccoli,” she says. “Congress represents the people, and the majority of people would have to say they wanted to be forced to buy broccoli as a way to regulate the interstate broccoli market.”
But it’s debatable whether Congress truly executed the will of the people with its mandate. A recent poll conducted by the Associated Press found 82 percent of Americans do not believe the federal government should be allowed to require Americans to purchase health insurance.
However, other polls consistently show the public also feels rising premium costs and the denial of coverage for pre-existing conditions — two problems mandated insurance aims to fix — are unacceptable.
It’s unknown whether other components of the law would survive without the insurance mandate. But it’s clear they would not function as the president and Congress envisioned.