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The Affordable Care Act


The following is an article by Linda Greenhouse, published in The New York Times, March 23, 2012. You be the judge



Never  Before


Free of convention, and fresh from reading the main briefs in the case to be argued before the Supreme Court next week, I’m here to tell you: that belief is simply wrong. The constitutional challenge to the law’s requirement for people to buy health insurance – specifically, the argument that the mandate exceeds Congress’s power under the Commerce Clause – is rhetorically powerful but analytically so weak that it dissolves on close inspection. Maybe the court will agree with that assessment, and maybe it won’t. I think it will, by a wide margin, but that isn’t my point; the justices will do what they will do. Going into as dramatic a week at the Supreme Court as I can recall (the argument in Bush v. Gore was over in 90 minutes, compared with the six hours the justices have allocated to the Affordable Care Act), my concern is that the three-day marathon may leave people muddled and confused about something that is really quite simple and clear. So I want to unpack the challengers’ Commerce Clause argument for what it is: just words.


Basically just one word, in fact: “unprecedented.” Did you know that the individual mandate is unprecedented? You will after you read the brief filed by the redoubtable Paul D. Clement, the former solicitor general, on behalf of the 26 states that filed suit to challenge the law. The brief uses the word “unprecedented” 10 times. Unprecedented is a description, not an analysis. What’s unprecedented is the singular determination of the Republicans both on Capitol Hill and in the statehouses to deprive President Obama of his major domestic achievement. Republican officeholders in all 26 states joined together in the case now known as United States Department of Health and Human Services v. State of Florida. In 22 of those states, the officeholder was the attorney general. In four states with Democratic attorneys general (Nevada, Wyoming, Iowa and Mississippi), Republican governors filed in their own names. Ironically, not so long ago, the individual mandate was an idea conceived of and promoted by conservative policy wonks to counter more fundamental reform sought by the Clinton administration.


The countless unprecedented things that Congress has done over the centuries were not, for that reason, unconstitutional. Social Security, Medicare, the Employee Retirement Income Security Act (Erisa), and the Emergency Medical Treatment and Labor Act, the 1986 law passed to prevent hospitals from refusing to care for uninsured patients in acute distress, all come to mind. (From the perspective of today’s toxic politics, it’s a miracle that any of these laws actually got passed, but that’s a separate issue.) So there must be some problem with the Affordable Care Act other than “never before.” As I said, the rhetoric is powerful: “The Constitution protects and promotes individual liberty, while the mandate’s threat to liberty is obvious.” How so? “It is a revolution in the relationship between the central government and the governed.” In what respect? Beyond regulating commerce, a power explicitly granted to Congress by Article I of the Constitution, the Affordable Care Act gives Congress “the power to compel individuals to enter into commerce” – a “fundamental” distinction with “breathtaking” implications.


This is the argument that persuaded the two members of the three-judge panel of the Atlanta-based United States Court of Appeals for the 11th Circuit who voted to invalidate the mandate. The government argues that, to the contrary, the “uncompensated consumption of health care” by those who are willfully or helplessly uninsured is itself an enormous economic activity. The uninsured don’t exist apart from commerce. To the contrary, their medical care results in some $43 billion of uncovered health care costs annually and, through cost-shifting, adds $1,000 a year to the average cost of a family insurance policy. People who don’t want to buy broccoli or a new car can eat brussels sprouts or take the bus, but those without health insurance are in commerce whether they like it or not.


Just like their opponents, the government lawyers are not above using repetition to hammer home their main points. The government brief repeatedly cites a 2005 Supreme Court decision, Gonzales v. Raich, which upheld Congress’s authority to criminalize the private, non-commercial cultivation of marijuana for medicinal purposes. Justice Antonin Scalia wrote a concurring opinion in that case. Neither Chief Justice John G. Roberts Jr. nor Justice Samuel A. Alito Jr. was on the court then. But two years ago, they both voted with the majority in another case the government cites repeatedly, United States v. Comstock. That decision, a robust interpretation of Congress’s authority to pass legislation it deems “necessary and proper,” upheld a federal law imposing extended confinement on dangerous sexual predators who have completed their criminal sentences.


One of the more depressing news items I’ve seen lately was the report of a Bloomberg News national poll indicating that 75% of people expect that the Supreme Court’s health care decision will be influenced by the justices’ politics. Only 17% predicted that the case would be decided “solely on legal merits.” Now it’s up to the court to prove them wrong.



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