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The Supreme Court, the Affordable Care Act, and the Slippery Slope

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There is no doubt that a state can constitutionally require citizens to have health insurance. Why, then, is the Supreme Court fussing over the constitutionality of the individual mandate provision of the Affordable Care Act?

The answer is simple. States have plenary authority to legislate on matters of public policy. The national government, however, is a government of limited powers. It cannot constitutionally act unless the Constitution authorizes it to do so. The central question in the case now pending before the Supreme Court is whether the Constitution grants Congress the authority to require individuals to have health insurance. Opponents of the law argue that it exceeds the legitimate authority of the national government.

The government defends the constitutionality of the individual mandate on the basis of the Commerce Clause of the Constitution, which provides in Article I, Section 8, that Congress shall have the power "to regulate Commerce ... among the several States."

Over time, the Supreme Court has held that under this provision Congress can constitutionally regulate activity if, in the aggregate, it has "a substantial economic effect on interstate commerce." Moreover, as Justice Rehnquist explained in 1995, the Court's role in determining the constitutionality of federal legislation under the Commerce Clause is limited to deciding whether Congress "had a rational basis ... for concluding that a regulated activity sufficiently affected interstate commerce" to merit federal action.

It is the Commerce Clause that authorized Congress to enact such legislation as the Sherman Antitrust Act of 1890, the Fair Labor Standards Act of 1938, the Civil Rights Act of 1964, the Environmental Policy Act of 1969, the Controlled Substances Act of 1970, and the Americans with Disabilities Act of 1990, to cite just a few examples.

In light of past decisions of the Supreme Court, arguments against the constitutionality of the Affordable Care Act initially seemed completely spurious. There can be no doubt that the economic effects of the health care industry on interstate commerce are huge, comprising more than 17 percent of the entire national economy. Thus, whatever the merits of the individual mandate in terms of public policy, there seemed no serious question about its constitutionality.

But here we are, the day after the Supreme Court heard arguments on the constitutionality of the individual mandate, and commentators reading the tea leaves of the justices' questions think that there is now a realistic possibility that Justices Roberts, Scalia, Kennedy, Thomas and Alito might actually vote to hold the Act unconstitutional. This is surprising even to many conservatives, who might not like the Act, but who nonetheless think it is clearly constitutional.

What, then, is the argument against the constitutionality of the individual mandate? The argument, quite simply, is that unlike other federal regulations of economic activity, the individual mandate requires individuals to do something (buy health insurance) even though they have not affirmatively done anything themselves to affect commerce.

Unlike the businessman who enters into an agreement with a competitor to restrain competition in violation of the Sherman Act or the employer who refuses to hire an African American in violation of the Civil Rights Act, the individual who simply doesn't buy health insurance hasn't done anything to merit federal attention.

It should be pretty obvious that this is a distinction without a difference. Why is the employer who refuses to hire an African American any different from the individual who refuses to buy health insurance? Of course, one can say that the employer is in fact doing something -- he is refusing to hire an African American. But that is no different than refusing to buy health insurance. The line between action and inaction in these situations is pointless.

One might also argue, however, that the person who refuses to buy health insurance is not doing anything that affects interstate commerce. He is simply making a decision not to buy something. That might be true if the individual never called upon the rest of us to pick up the tab when it later turns out that he needs health care. Because we are not a heartless community, we do not turn people away when they need medical attention, even if they can't afford it.

The problem, then, is that the decisions of individuals in the aggregate not to buy health insurance wind up having a dramatic effect on the cost of health care for everyone else and therefore have a substantial effect on interstate commerce. The healthy young Texan who chooses not to purchase health insurance raises the cost of insurance for the older Arkansan who does. And this is true millions of times over. It therefore makes perfect sense for Congress to attempt to deal with this problem by requiring people to have health insurance, just as states require people who own cars to have auto insurance.

What seems to bother the conservative justices, though, is the slippery slope. If the federal government can require individuals to purchase health insurance, then there is no stopping point. The federal government can require us all to eat broccoli if that would help the broccoli industry or make us healthier (Scalia) and to buy burial insurance to avoid the risk that when we die the government will have to dispose of our bodies at public expense (Alito).

Lawyers love slippery slope arguments. They are a useful way of testing the wisdom of a particular principle or decision. If we do X, then what else will be have to do if we act consistently? Will we also have to do Y and Z? And if Y and Z are not good, then perhaps we shouldn't do X.

But the slippery slope is a means of reasoning, not a conclusion. Every principle and decision has a slippery slope. The question is whether we can get off the slope before it reaches bad outcomes. In this instance, this is easy. The decisions of millions of individual Americans not to purchase health insurance (even though they can afford it) have a dramatic impact on the cost of health care for everyone else and on interstate commerce. This is clearly an appropriate matter for federal attention under the Commerce Clause.

If the decisions of individuals not to eat broccoli and not to buy burial insurance had similar effects on interstate commerce, then it might also be appropriate for the national government to intervene. But the hypotheticals are, quite frankly, ridiculous. They are bad arguments to which any first-year law student knows the answer. If the conservative justices, who are, after all, very good lawyers, rely on such arguments to defend a decision to invalidate the Affordable Care Act, then we know something else is going on.

How justices who purport to celebrate their commitment to judicial restraint and judicial modesty could even imagine striking down this law on such transparently weak grounds is beyond comprehension. For that reason, I don't believe they will do so. If they do, it will be (another) dark day for the Supreme Court, which already labors under a cloud of public disillusionment after its decisions in Bush v. Gore and Citizens United.