After decades of legislative impotence Congress has finally addressed the soaring costs of health care. By fining those who don't buy insurance -- and who instead get treatment by free-riding on the backs of those who do -- the Affordable Health Care Act's individual mandate increases the pool of the insured. As a result, participants in the system pay less, and insurance providers can feasibly extend coverage to those with preexisting conditions.
Indeed, the Act was a big win for its proponents.
But there were losers, too. And now the Act's opponents are continuing the fight in the courts. Their aim, ultimately, is to convince a majority of the Supreme Court that Congress lacks the power to enact the mandate.
This effort to achieve through litigation what couldn't be achieved through legislation will likely reach the Court within two years. When it does, the Court should uphold the mandate for two reasons.
First, the mandate is constitutionally sound. The Constitution gives Congress the power to regulate that which "substantially affects interstate commerce." Applying this principal, the Court has rejected virtually every challenge to the commerce power, upholding such relatively modest laws as one regulating the amount of wheat grown on family farms and another criminalizing the home-grown cultivation of marijuana.
Indeed in the last seventy years the Court has struck down only two laws as exceeding the commerce power: one allowing civil lawsuits for violence against women and another prohibiting the possession of guns near schools.
Health care costs - which measure in the trillions of dollars per year - not only dwarf the commercial impact of violence against women and guns near schools, they also far exceed the commercial impact of wheat grown on family farms and home-grown marijuana. In short, the mandate has not merely the requisite "substantial" effect on interstate commerce - it has a massive one.
What, then, is the legal case against the mandate? Well, its challengers make the novel argument that because Congress is regulating inactivity (not buying insurance) instead of activity, it no longer has the power to regulate commerce.
Please. In 200 years of broadly defining the commerce power the Court has never found such a limitation. Congress, moreover, has a near-absolute power to tax American citizens (although not generally referred to as such, the mandate fits comfortably within the definition of a tax). Thus, creative legal arguments aside, because the mandate easily meets the Court's actual test -- regulating that which substantially affects interstate commerce -- it passes constitutional muster.
The second reason the Court should uphold the mandate is because the Court has no business striking it down. The mandate is the product of decades of hard-fought legislative effort. It is a considered measure taken by Congress which is (unlike the Court) acutely aware of our fiscal problems and (also unlike the Court) constitutionally responsible for our general welfare. Learned in the law but detached from the realities of our health-care system, the Court should not replace Congressional wisdom with the illusion of its own.
The legal challenge to the mandate is, indeed, not just about health-care reform. It is a test that will reveal whether our three-branch system of government can handle complicated modern problems. When, after years of deliberation and negotiation, Congress addresses our most pressing national challenges -- and does so without offending any provision of the Constitution or decision of the courts -- a majority of the Supreme Court should not reverse such efforts. The Affordable Health Care Act is no different. When the time comes, the Court should uphold the mandate.