Individual Mandate
I thought that this was a particularly thoughtful commentary. It was published in the New England Journal of Medicine.
Buying Health Care, the Individual Mandate, and the Constitution
Posted by NEJM • June 23rd, 2010
Sara Rosenbaum, J.D., and Jonathan Gruber, Ph.D.In Rashomon, a classic film that explores the concept of truth, director Akira Kurosawa presents a story about a single incident retold by four narrators, leaving the audience to figure out what is real. Litigation has a Rashomon-like quality to it: two sides meet in a courtroom and each presents its case, arguing not only that abstract legal principles favor its cause, but equally important, that its version of the event that gave rise to the dispute should be the filter through which the court decides the matter.
Three separate cases raising constitutional challenges to the Affordable Care Act (ACA) are now under way(1,2,3) and together they present issues of great legal complexity.(4) Yet although difficult legal questions must be resolved, a pivotal issue is whose version of events will serve as the judicial analytic filter. For reasons related to the very basis of Congress’s constitutional power to enact health care reform, the fight is over whether the individual mandate to purchase health insurance (or pay a tax) is about regulating individuals’ economic conduct or regulating their noneconomic status. Depending on which characterization of the facts prevails, the individual mandate either falls within or lies outside Congress’s power to act.
The Supreme Court precedents indicate that the framers of the U.S. Constitution vested Congress with enormous powers to regulate individual economic conduct, even as they limited congressional authority over noneconomic activity. The source of this power to regulate economic activity down to the individual level is found in the Constitution’s Commerce Clause (article 1, section 8, clause 3), on whose reach the legal resolution of these cases ultimately depends. This clause explicitly grants Congress the authority to regulate interstate commerce.
In Gonzalez v. Raich, a 2005 decision involving federal regulation of home-grown marijuana, the U.S. Supreme Court concluded that growing marijuana amounted to economic activity and interpreted the Commerce Clause as permitting Congress to reach the “consumption of commodities for which there is an established and lucrative interstate market.” In other cases involving the constitutionality of federal laws sanctioning individual conduct — gun possession on school grounds (in United States v. Lopez, 1995) and domestic violence (in United States v. Morrison, 2000) — the Court concluded that the specified activities did not amount to economic conduct within the definition of the Commerce Clause. To be sure, both gun possession and violence against women have economic consequences, but an indirect economic effect is insufficient to warrant congressional regulation. As a result, only states, using their police powers, can directly regulate such activity, which lies beyond the limits of Commerce Clause control.
Thus, the outcome of the battle over the individual mandate turns on whether the courts understand the ACA as a law that regulates economic conduct. Complaints recently filed by the state of Virginia and by multiple state claimants in Florida represent a direct challenge to the proposition that economic conduct is involved. In their complaint, the multistate plaintiffs argue that the law should be viewed as an attempt “to regulate and penalize Americans for choosing not to engage in economic activity.” Similarly, in his June 2010 brief, the Virginia attorney general argues that the ACA must be understood as an attempt to compel individuals to undertake economic conduct by forcing them to buy health insurance. In other words, highly cognizant of the distinction drawn in Raich between economic and noneconomic conduct, the plaintiffs argue that health care reform is a blatant attempt to force an economic undertaking; they frame the ACA as a law about status (being uninsured) rather than about economic activity. [Read more →]
Rand Paul has been out of the spotlight for about a month or so. I’m sure that he has been “training” for how to answer questions without answering questions. If you have crazy, wacky, far-right ideas,you can’t sell that to the public. Instead, you need to moderate your craziness. Rand Paul believes that Medicare = socialism. So this honest, though far-right wing thought needs to be changed to – We need better oversight of Medicare. This is the way you can turn a crazy thought into something reasonable.
