THE BLOG
01/12/2012 04:10 pm ET | Updated Mar 13, 2012

The Supreme Court and the Individual Mandate: The Wind Beneath Whose Wings?

Quite recently, the government filed its brief before the U.S. Supreme Court addressing the individual mandate; it has become the centerpiece of the cases addressing the constitutionality of the health care act (Patient Protection and Affordable Care Act, or "ACA"). Oral arguments in unprecedented fashion (as well as on three other critical issues) will be heard on March 26, 27, and 28. Harkening back to the title of a Bette Midler song of some years back, under whose wings will the wind be when the nation's highest court decides ACA's constitutionality?

This posting only focuses on the individual mandate (Sec. 1501 of ACA) -- that all Americans must purchase an insurance policy starting two years from now or else they will be taxed as a penalty starting in 2015. The betting line would say that the Republican conservative wing of the Court -- Scalia, Thomas, Alito and Roberts -- will no doubt want to find it unconstitutional as representing authority the constitution precludes the Congress from using. However, there is a fly in this ointment, if one looks at Supreme Court precedent, notably the case of Gonzales v. Raich. In this decision, the court decided by a vote of 6-3 that Congress could ban a medical-marijuana patient from growing cannabis for personal use in California where it is legal. Scalia, with Kennedy, joined in the majority opinion.

The government's recent legal filing on ACA cites to the Raich decision liberally, as if to remind Justice Scalia how he thought growing a plant for the use of one person in one state has an impact on interstate commerce. This is not surprising, given that Raich reaffirmed the vitality of another case before the Court as part of the New Deal era, Wickard v. Filburn, where an Ohio farmer wanted to grow wheat for personal consumption as well; the Court found that such use would distort the interstate wheat market by eliminating the demand of the farmer, who would otherwise be forced to purchase his consumption on the open market. The key to these cases is the Court's reaffirmation that Congress can regulate economic activity, affecting interstate commerce if there is a rational basis to do so.

There are two other cases you might hear spoken of, U.S. v. Lopez and U.S. v. Morrison. In Lopez the Gun-Free School Zones Act of 1990 was challenged and in Morrison, the Violence Against Women Act. The Court in both cases stated that neither subject area (possessing a firearm or gender-motivated violence) regulated activity that was economic in nature and therefore was beyond Congress' ability to regulate under the Commerce Clause.

With all the above precedent, including Scalia (and do not also forget Justice Kennedy joined him in Raich) finding that a medical marijuana patient smoking grass for personal use still has an impact on interstate commerce, what, then about the individual mandate on the health care market?

First, it goes without saying that health care is a very, if not, the most unique product or service that impacts each of us in equal fashion. Why? (1) We all need it; (2) We all need it to be healthy, and to be healthy enables us to be productive on whatever basis one wishes to define productivity; (3) Anyone's health is just as important as anyone else's, i.e., a Justice Scalia wants to be just as healthy and fit as the advocate who advances positions he finds preposterous, or the injured war vet wanting to recover from his or her war-inflicted wounds; (4) If we need healthcare but cannot afford it or do not have insurance to cover it (50+ million Americans are uninsured without considering the under-insureds, and this figure is continually rising), we still must get it, if for no other reason than the federal E.M.T.A.L.A. law mandates that the health care industry must give it to us until we are stabilized (as in a hospital's emergency room); and (5) For those who get uncompensated treatment, our health care system does not eat the costs -- they are passed on across state lines to the rest of us in one way or another who have health policies of insurance or who pay for it out of pocket.

Opposition to the mandate will chiefly rely upon the arguments that Americans not wanting to purchase insurance are only making a mental judgment that neither constitutes an activity, an economic activity nor one that affects interstate commerce. Webster's Dictionary tells us that "economics" refers to the production, distribution and consumption of commodities. So, it is foolhardy to suggest that a decision not to buy insurance does not constitute economics. When such a person needs health care and won't buy a policy per ACA's mandate, the rest of America pays for that person's health care in one fashion or another. As noted D.C. federal court Judge Gladys Kessler stated in Mead v. Holder, [interstate commerce is affected by], "individuals [actively] choosing to remain outside of a market for a particular commodity, and, as a result, Congress's effort to stabilize prices for that commodity are thwarted."

As for whether there must only be physical activity involved before the constitution allows Congress to regulate it, there is no real precedent in the law one way or another. To be sure, all cases before the Court have involved "activity," but merely thinking "no" and not buying insurance still will have the same effect as what occurred in Raich or in Wickard, particularly given the serious and health-related consequences to every person who claims he or she is not acting and refuses to comply with the mandate (again, see my points (4) and (5) above). Consequently, Congress had a rational basis for enacting the individual mandate. The mandate's rationale is also supported by the reality that in order for insuring entities to provide the benefits under ACA never allowed before, like covering pre-existing conditions or keeping kids on their parents' policy until age 26, the insurance industry required that the risk be spread across the entire population in order to keep costs and premiums within reason. Without a mandate, those benefits would still have to be provided but the costs for them would be in the form of astronomical premiums (even more than today), which, in turn, would force more Americans to become the uninsureds of the nation than those we see now. In terms of access and affordability, a more vicious circle cannot be envisioned for an already deplorable health care system.

Respected and conservative Judge Lawrence Silberman of the federal DC Circuit Court of Appeals got it right when, at the very end of his court's recent majority decision (affirming Judge Kessler's lower court opinion finding the mandate constitutional), he recognized that health care is a national problem requiring a national solution. Let's hope the Supreme Court hears this clarion call; Justice Scalia sure did in Raich.