In its decision today upholding the constitutionality of the Affordable Care Act, the Supreme Court, by a five-to-four vote, held that the individual mandate provision (requiring uninsured individuals who can afford to buy health insurance to do so) was justified by the Congress' power to tax, but not by its power to regulate interstate commerce. In the end, the difference may seem insignificant. When all the dust settled, the individual mandate is constitutional. But it is nonetheless worth understanding the disagreement about the reach of the Commerce Clause, because this was the primary focus of most of the public debate leading up to the decision and was also the subject of the wildly popular broccoli hypothetical.
Only one justice thought the Act was constitutional under the taxing power but not the commerce power -- Chief Justice Roberts. The other eight justices thought the Act was either constitutional (Ginsburg, Breyer, Sotomayor, Kagan) or unconstitutional (Scalia, Kennedy, Thomas, Alito) under both provisions.
To understand why Ginsburg, Breyer, Sotomayor and Kagan were right about the constitutionality of the Act under the Commerce Clause (even though they lost five-to-four on that issue), I have reprinted below a heavily-edited and abridged (by me) excerpt from Justice Ginsburg's dissenting opinion on the Commerce Clause issue. In my view, it absolutely shreds the opposing view and, in any event, is an excellent primer on the question:
By any measure, the health care market is immense, accounting for 17.6 percent of our Nation's economy. Moreover, unlike the market for almost any other product or service, the market for medical care is one in which all individuals inevitably participate. Moreover, on average, an individual in the United States incurs over $7,000 in health-care expenses each year. To manage the risks associated with medical care -- its high cost, its unpredictability, and its inevitability -- most people in the United States obtain health insurance.
Not all U. S. residents, however, have health insurance. In 2009, approximately 50 million people were uninsured, either by choice or, more likely, because they could not afford private insurance and did not qualify for government aid. As a group, uninsured individuals annually consume more than $100 billion in health-care services.
Unlike markets for most products, the inability to pay for care does not mean that an uninsured individual will receive no care. Federal and state law, as well as professional obligations and embedded social norms, require hospitals and physicians to provide care when it is most needed, regardless of the patient's ability to pay. As a consequence, medical-care providers deliver significant amounts of care to the uninsured for which the providers receive no payment.
Health-care providers do not absorb these bad debts. Instead, they raise their prices, passing along the cost of uncompensated care to those who do pay. In response, private insurers increase their premiums, shifting the cost onto those who carry insurance. The net result: Those with health insurance subsidize the medical care of those without it.
The size of this subsidy is considerable. Congress found that the cost-shifting just described "increases family [insurance] premiums by on average over $1,000 a year." Higher premiums, in turn, render health insurance less affordable, forcing more people to go without insurance and leading to further cost-shifting. Congress therefore passed the individual mandate provision of the ACA to address an economic and social problem that has plagued the nation for decades.
* * * * * * * The Commerce Clause was the Framers' response to the central problem that gave rise to the Constitution itself. What was needed was a "national Government ... armed with a positive & compleat authority in all cases where [national] measures are necessary." (Quoting James Madison.) The Framers' solution was the Commerce Clause, which, as they perceived it, granted Congress the authority to enact economic legislation "in all Cases for the general Interests of the Union." (Quoting Alexander Hamilton.)
Consistent with the Framers' intent, we have repeatedly emphasized that Congress' authority under the Commerce Clause is dependent upon "practical" considerations. Until today, this Court's pragmatic approach to judging whether Congress validly exercised its commerce power was guided by two familiar principles. First, Congress has the power to regulate economic activities "that substantially affect interstate commerce." Second, we owe a large measure of respect to Congress when it frames and enacts economic and social legislation. When appraising such legislation, we ask only (1) whether Congress had a "rational basis" for concluding that the regulated activity substantially affects interstate commerce, and (2) whether there is a "reasonable connection between the regulatory means selected and the asserted ends."
Straightforward application of these principles would require the Court to hold that the individual mandate provision is proper Commerce Clause legislation. Beyond dispute, Congress had a rational basis for concluding that the uninsured, as a class, substantially affect interstate commerce. Not only do those without insurance consume billions of dollars of health care each year, but their inability to pay for a significant portion of that consumption drives up market prices, foists costs on other consumers, and reduces market efficiency and stability. Given these far-reaching effects on interstate commerce, the decision to forego insurance is hardly inconsequential or equivalent to "doing nothing."
* * * * * * * Rather than evaluating the constitutionality of the minimum coverage provision in the manner established by our precedents, THE CHIEF JUSTICE relies on a newly minted constitutional doctrine. The commerce power does not, THE CHIEF JUSTICE announces, permit Congress to "compe[l] individuals to become active in commerce by purchasing a product." THE CHIEF JUSTICE's novel constraint on Congress' commerce power gains no force from our precedent and for that reason alone warrants disapprobation.
But even assuming that Congress lacks authority under the Commerce Clause to "compel individuals not engaged in commerce to purchase an unwanted product," such a limitation would be inapplicable here. Everyone will, at some point, consume health-care products and services. Thus, if THE CHIEF JUSTICE is correct that an insurance purchase requirement can be applied only to those who"actively" consume health care, the minimum coverage provision fits the bill. More than 60% of those without insurance visit a hospital or doctor's office each year, and nearly 90% will do so within five years.
THE CHIEF JUSTICE draws an analogy to the car market. An individual "is not 'active in the car market,'" THE CHIEF JUSTICE observes, simply because he or she may someday buy a car. The analogy is inapt. The inevitable yet unpredictable need for medical care and the guarantee that emergency care will be provided when required are conditions nonexistent in other markets. That is so of the market for cars, and of the market for broccoli as well. Although an individual might buy a car or a crown of broccoli one day, there is no certainty she will ever do so. And if she eventually wants a car or has a craving for broccoli, she will be obliged to pay at the counter before receiving the vehicle or nourishment. She will get no free ride or food, at the expense of another consumer forced to pay an inflated price.
Underlying THE CHIEF JUSTICE's view that the Commerce Clause must be confined to the regulation of active participants in a commercial market is a fear that the commerce power would otherwise know no limits. As an example of the type of regulation he fears, THE CHIEF JUSTICE cites a Government mandate to purchase green vegetables. One could call this concern "the broccoli horrible." Congress, THE CHIEF JUSTICE posits, might adopt such a mandate, reasoning that an individual's failure to eat a healthy diet, like the failure to purchase health insurance, imposes costs on others.
Consider the chain of inferences the Court would have to accept to conclude that a vegetable-purchase mandate was likely to have a substantial effect on the health-care costs borne by lithe Americans. The Court would have to believe that individuals forced to buy vegetables would then eat them (instead of throwing or giving them away), would prepare the vegetables in a healthy way (steamed or raw, not deep-fried), would cut back on unhealthy foods, and would not allow other factors (such as lack of exercise or little sleep) to trump the improved diet.
When contemplated in its extreme, almost any power looks dangerous. The commerce power, hypothetically, would enable Congress to prohibit the purchase of all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables. Yet no one would offer the "hypothetical and unreal possibilit[y]" of a vegetarian state as a credible reason to deny Congress the authority ever to ban the possession and sale of heroin. THE CHIEF JUSTICE accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate.
For the reasons explained above, the minimum coverage provision is valid Commerce Clause legislation.
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Some peole who are against this plan may be in denial that they could get very ill or injured and would need insurance. if they have insurance, without Obamacare their company could DUMP them just when they need the insurance the most. And then, without Obamacare, they'd have a pre-existing condition so might not be able to buy other insurance EVER!
If they don't have insurance, they are taking the risk that they will be on the public's money in the ER.
That's why this is different than other commerce.
Frankly, I'm rather shocked that so many don't, including Justices on the Supreme Court? We wonder why this horrible divide. None of us understand why the Chief Justice of the Supreme Court took it upon himself to rewrite the health care law, nor do we understand how in one fail swoop our country's mode of governing has changed from that of a Republic to an all inclusive federal take over. It's shocking that so many of you want this. There are and were so many other remedies, available, to reform our insurance system and medical systems and to resort to this is appalling.
the Heritage Foundation (yes a Concervative group) lauded the MA healthcare law, complete with it's individual mandate.
It was based very much, on the 1993 REPUBLICAN National healthcare bill that the Reps in Congress put forth to counter Clinton's (failed) bill.
So...
This bill is pretty moderate. I wonder what extreme claims of fact you have heard that have you so alarmed. This bill is based on Moderate and Republican ideas. Many of the Republicans in Congress who voted against it were FOR these things when they were in Congress and Republicans proposed them!
I hope she stays in office for a long time.
.....except that you can't even quote a single phrase from the Constitution that backs that up. Not one.
Why? Because your "rationale" is based on what dead people have said about the Constitution 150 years after it was written, not what was actually written, nor what the writers and the foundres themselves said.
"They are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union." - Thomas Jefferson
This tax does not pay the debts or provide for the welfare of the Union.
You and I pay about $1,000 per year to pay for health care for the uninsured. This is not called a "tax", it's called cost-shifting. It comes through higher premiums and higher charges at hospitals and for health care goods and services.
But we all pay through the nose as if it were a tax. It's been killing business, killing competitiveness and making insurance less obtainable every year.
Congress deemed the new regulation to reduce this cost-shifting "reasonable" regulation, to stop the unfair shifting of costs to you and I from the free riders.
This is interpreted today as in the welfare of the Union.
It's ironic that you are fighting for greater socialism under the current system - we all pay for the uninsured by spreading the cost around to all - and Obama is fighting for greater capitalism - insurers get a guaranteed customer base with guaranteed profits up to 20%.
Things are sure upside down.
Congress is allowed to tax IF it is to set aside money for the general welfare (as enumerated below that phrase). It is NOT allowed to tax in order to punish people or force them to do things that are perfectly legal not to do. Imagine how odd mandatory insurance would have sounded 100 years ago. As odd to them as the idea of "food insurance" sounds to us.
I'm not fighting for anything like socialism. I'm saying two wrongs don't make a right and we need to get rid of all of them, not pile on more. If a burglar broke your door in and stole your stuff, then showed up with a gun the next day saying "you're going to give my friend here $2000 to fix your door", are you going to be happy about that? Because it sounds like you'd be thrilled.
See how that works? They enacted a tax that actually concerned a delegated power.
Are we all foreign sailors now?
And guess WHAT? Those people pay out of their wallet. It's called PATMOS. And there are increasing number of PATMOS clinics popping up that ONLY take cash, and offer services for half or less what normal clinics charge. I had a baby and paid CASH. It wasn't that much money.
That is entirely IMMATERIAL to the consitutionality.
Aside from this, it's just plain wrong. Americans inevitably participate in all kinds of markets - the personal electronics market, the telecommunications market, the television market, the housing market, the food market, the automotive market, etc, etc. So why can't we force people to buy food insurance? How about telephone insurance?
to go your way...
why can many states force you to buy car insurance? answer--because they deem that overall it is for the greatest good for the public. Why then do you not worry the state would "force people to buy food insurance or telephone insurance?"
We dont' worry because the elected officials of the state wouldn't make us do unnecessary things ...only stuff that greatly helps the greater good.
You guys just impose your philosophy OVER the Constitution and then claim your philosophy is in it.
Why can states force insurance? 10th Amendment. Wha does that say?
Insurance not only isn't necessary, it's self-defeating. People buy insurance because they have been told they can't afford a big health care bill. Then the insurance BECOMES the big health care bill they can't afford. My parents spend enough money a year on insurance for several operations and a truck load of drugs. So, sure, let's force more of that on people.
So, in this care, the Commerce Clause argument was deemed to be bunk...BUT, they called it a tax and upheld it on those grounds.
So, couldn't a President Romney pass a tax on being black or Jewish or a woman...?
Sure, discrimination of that sort IS unconstitutional, but taxes ARE Constitutional, so...using Robert's logic...it should be fine.
It's not a law AGAINST being black or Jewish or a woman...it's just a tax you pay if you are...
I wish the people cheering this ruling would just admit that they wanted HCR upheld and didn't care if Roberts claimed a dog told him how to vote...
There is no legal basis for it.
Slippery slope?? Congress can now penalize you for NOT doing something by taxing you! Wow, this is scary!!
Healthcare is different because those who pay have so much cost added because of the free riders, it was affecting our liberty. When you buy insurance, you are paying for the moochers through higher premiums and higher charges for goods and services.
The Constitution says Congress can act to regulate this if it's proven reasonable, under the Commerce clause or ability to tax. Now, if you are really principled, you'll start to wonder why they included up to a 20% profit for insurance corporations in the law.
No it doesn't. There's nothing like that in the Constitution.
"Second, we owe a large measure of respect to Congress when it frames and enacts economic and social legislation. "
Ummm, no, we don't. They owe the Constitution and the people a large measure of respect that is entirely lacking. Congress doesn't have a 10% approval rating for nothing. We owe it NOTHING. They owe US everything.
It could, however, be considered a public health issue, If, for example, brocolli proved to be a cure for a contagious, fatal disease, the Congress could force all citizens to eat the vegetable. Indeed, it would be obligated to do so to protect the public health since refusing to eat brocolli would be a matter of life and death for millions of Americans. The same reasoning could be applied to health insurance since lack of it could also be a matter of life and death to any number of citizens.
Hopefully, the vegie could be synthesized and taken in pill or vaccine form.
However, I was thinking along somewhat different lines than vaccinations for common childhood diseases. For example, a deadly bacterium or virus that threatened whole populations. As a matter of life and death, I certainly hope government would exercise its power to force people to take a preventative..
Now government could indeed pay for the cure using its taxing power. And I think that may be what Roberts was alluding to. However, during a public emergency, government has vast powers and they could be exercised through the Commerce Clause.
I'm neither jurist nor lawyer. However, I would expect, even demand, government protect all its citizens in case of such an emergency.
The only exception I would make would be for Antonin Scalia. He can do whatever he wants. My guess is that he would be first in line and screw the Constitution.
The Chief Justice's market analogies reflect a failed attempt to inject "choice" into the equation but the health care system is not a marketplace. There is inevitably a lack of transparency as well as gross information asymmetries that affect consumer "choice" (which hospital in your area has the best prices for a hysterectomy, cardiac care, or lung surgery?) and it is not possible to know when or how much health insurance coverage one needs, given the unknowable future. Also, a third party, physicians, largely make the decisions for us as to what services to consume and when. With broccoli, you are on your own.