“Can the government make you buy cell phones?” The question Chief Justice Roberts asked during oral arguments over the Patient Protection and Affordable Care Act (PPACA) is at the heart of fears spurred by many who oppose the bill. Those who favor repeal of the landmark health care and health insurance reform bill, especially conservatives, often cite the individual mandate as particularly problematic. The mandate requires all US residents to have “minimum essential coverage” or pay a tax penalty The penalty for failing to purchase insurance is $750 or 2 percent of income, whichever is greater, although there are exemptions for religious, financial, or legal status. In making their arguments before the Court and the public, both sides have made superficial and even spurious arguments that warrant closer examination.
Even though the idea of criminalizing inaction and compelling individuals to buy something from a private supplier does seem like a radical step, proponents of PPACA claim that the individual mandate is necessary to make the bill as a whole feasible. Without having healthy individuals paying into the system to balance those with pre-existing conditions who will no longer be denied coverage, health insurers would face financial hardship. Moreover, the status quo is conducive to adverse selection, since many individuals will simply refrain from buying health insurance until they need it, further burdening both insurance companies and taxpayers who would foot their emergency room bills in the event that they suffered a sudden illness. Critics are still unconvinced, asserting that viability should not be the primary consideration when dealing with constitutional matters.
The government’s arguments for the constitutionality of the law have generally been based on the Interstate Commerce Clause and the Necessary and Proper Clause. In response to charges that the law criminalizes inaction, proponents point out that the mandate is enforced through the Internal Revenue Code, not criminal procedure. Furthermore, under the Affectation Doctrine established by the Court in Wickard v. Filburn (1942) and Gonzales v. Raich (2005), “Congress also has authority to regulate any and all economic activity that, in the aggregate, has a substantial economic effect on interstate commerce,” a standard that is easily met by health insurance. Finally, in both cases where district courts have found PPACA to be constitutional, judges ruled that the economic activity being regulated was healthcare, a field in which no one could reasonably be said to be inactive. Health insurance, according to the courts, is simply a way of paying for healthcare. As such, the courts ruled that the action-inaction distinction was moot. This raises a problematic question, however: Can individuals legally be said to have entered a market—even the healthcare market—simply by virtue of living? While difficult to predict how the Court will decide this question, it may be helpful to look at auto insurance as a partial analogy. Though provisions requiring the purchase of auto insurance are obviously contingent on the prior purchase of a car, the fact that car ownership is so widespread and in many cases pivotal makes it a similar enough case to suggest that the action-inaction distinction may not be enough to persuade the Court of the law’s unconstitutionality.
President Obama, in a rare departure from the precedent of sitting presidents withholding remarks until after the court has made its ruling, commented on the case during a press conference. He believes that the court will not rule the act unconstitutional, on the basis that doing so would be “judicial activism” and “an unprecedented, extraordinary step” since it was passed by a majority of members in the House and Senate. However, such a move would not be quite so unprecedented. The Supreme Court’s decision to overturn the National Industrial Recovery Act in Schechter Poultry Corp. v. United States (1935) seems analogous. In fact, the NIRA had broader public support, was passed by a larger majority of Congress and was billed as a stop-gap emergency measure. Nonetheless, the court voted unanimously to overturn FDR’s flagship legislation. Perhaps the better question to ask is, “Will the Court view this as a primarily political matter?” If so, then experience would suggest that the Court will let the bill stand, pursuant to the rational basis test. The Court established this test in Williamson v. Lee Optical (1955), in which it ruled that “[T]o be constitutional . . . [i]t is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.” If this is the standard the Court chooses to apply, then it may err on the side of upholding the law because of the severability issue. Congress made it clear in a report attached to PPACA that the individual mandate was the lynchpin of healthcare reform, without which the bill cannot stand. Therefore, it would seem that the Court must either completely overturn PPACA or uphold the individual mandate.
Aside from the constitutional questions surrounding the individual mandate, there are also practical challenges. The minimum plan required under PPACA costs around $3000 per person per year. The penalty for not purchasing minimum coverage is $750 or 2 percent of income. This means that for individuals making less than $150,000, the penalty is lower than the minimum requirement. Since the individual mandate is geared towards healthy young adults in their 20s and 30s, most of whom make well under $150,000, there are obvious concerns about its efficacy.
At the end of the day, no one truly knows how the Court will rule, but not because of the reasons usually cited. Neither the president nor his conservative opponents can truly claim that legal precedent does not exist for a judgment either way. While PPACA is truly daunting in scope, there are analogous government policies and regulations. As much as both might want to hedge their bets, sequestering the mandate from the rest of the act also seems unworkable. Finally, although both sides wish to constrain the debate to legal and philosophical grounds, practical questions still abound, no matter what the Court rules. Given the strange framing of the debate thus far, it is no wonder that Justice Roberts’ question was considered both completely appropriate and completely off point.