The American public has been closely following the action at the U.S. Supreme Court as the landmark health reform law faces the ultimate test of its constitutionality. Never before has the idea of “limiting principle” for the Commerce Clause been so publicly debated. The justices asked numerous questions exploring this point, often using hypothetical examples to illustrate. While Solicitor General Verrilli did an excellent and unfairly criticized job in the face of rapid-fire, nuanced questions, he necessarily did not have time to fully refute each hypothetical offered by the justices. But a slightly deeper examination of the hypotheticals shows why each one, while initially appealing as an analogy, is not all that helpful in identifying problems with the ACA. Keep in mind that, under Supreme Court precedent, Congress may use the Commerce Clause to regulate economic activity only when that activity “substantially affect[s] interstate commerce.” United States v. Morrison.
If the government can require you to buy health insurance, can it require you to…
…buy a cell phone? No. Chief Justice Roberts raised this example in connection with the provision of emergency services (police, fire, EMS), positing that if everyone had a cell phone, that would “facilitate” the speedy provision of these services, which are guaranteed by the government. First of all, the individual mandate is not about “facilitating” the speedy provision health care, it’s about regulating how and when we pay for health care services. On that point, police and firefighters are no longer analogous, because you don’t get billed when the police respond to your 911 call-this is covered in your local (and sometimes state) taxes. As to EMS, this isn’t really a hypothetical at all, because EMS services are billed to you as medical services and are covered by health insurance. As to cell phones specifically, while everyone’s having a cell phone may speed up emergency services, it doesn’t make them cheaper, whereas everyone’s having health insurance lowers all rates by spreading the risk. The decision not to buy a cell phone has no impact on interstate commerce, even when connected to emergency services.
…buy burial insurance? No. Justice Alito raised this hypothetical, which sounds quite analogous because everyone will someday die, just as everyone will someday need health care services. There are, however, problems with the analogy. First, the burial of unclaimed bodies or indigent persons is a responsibility of state and local governments, not private organizations. States handle this in different ways, with some using mass graves, others cremating such bodies, etc. But none of these methods implicates interstate commerce, as required under the Commerce Clause. These burials are paid for through state and local taxes. Second, because private burial service organizations are not required by law to provide services regardless of a person’s ability to pay, as EMTALA (the Emergency Medical Treatment and Active Labor Act) requires of private health care organizations, your lack of burial insurance does not raise anyone else’s burial rates. Thus, the decision not to buy burial insurance does not substantially affect interstate commerce.
…buy broccoli? Definitely not. Justice Scalia raised the infamous “broccoli mandate” that has been a rallying cry for conservative opponents of the ACA, but it made no more sense coming from him than it did from Rush Limbaugh. As a preliminary matter, forcing people to buy broccoli does not lower health care costs. The reason the insurance mandate is effective is because it is the very act of purchasing the insurance that lowers rates for everyone. There is no secondary step or logical chain that must be followed to get the desired result. With broccoli, the purchase of the product does not lower health care costs, even though broccoli is good for you. First, just because you bought the broccoli doesn’t mean you’ll actually eat the broccoli, which is where the health benefits begin. I very much doubt anyone will argue that Congress can use the Commerce Clause to mandate that everyone eat broccoli. Second, eating more broccoli is not going to make you healthier if you use said broccoli as garnish on your daily Big Mac. The potential health benefits of eating more broccoli are far too attenuated, and far too dependent on your other behaviors, to be connected in any meaningful way to health care costs. For the Supreme Court’s prior analysis of attenuated effects on interstate commerce, read United States v. Morrison (2000) and United States v. Lopez (1995).
…buy a gym membership? Justice Alito again, and again, no. This is similar to broccoli. Buying a gym membership doesn’t improve your health and thereby lower health care costs, using the gym does. By contrast, using health insurance doesn’t lower rates, buying it does. There are similar problems with the attenuated connection between gym membership and health costs as with broccoli and health costs-your other behaviors (poor diet, risky activities, etc.) can eliminate all benefit of using the treadmill twice a week.
…buy an electric car (or any car)? No. First, a car is not something that every person is guaranteed to need at some point in their lives. Second, you are not statutorily entitled to a free car should you need one and be unable to pay for it (see EMTALA again), such that your decision not to buy a car until you need one will cause everyone else to pay for your car through higher prices on their own. Third, your decision not to buy a car does not raise the price of cars for everyone else-according to the laws of supply and demand, it should actually lower the price.
More could (and should) be said on each of these topics, but it would take more than one short essay to do the project justice. The bottom line is this: none of these hypotheticals actually exposes a weakness in the ACA’s insurance mandate. There are legitimate reasons to question the mandate’s wisdom and what it means for our relationship with government, and the fact that these hypotheticals were not on point does not necessarily indicate that the law is constitutional. As to the Court’s search for a limiting principle, the Court should remember its own precedent: Congress may regulate economic activity that, in the aggregate, substantially affects interstate commerce. There is your limiting principle. For other thoughtful possibilities, see here and here. Because people’s decisions to self-insure, in the aggregate, substantially affect interstate commerce by forcing everyone else to bear the risk of catastrophic health costs that the self-insured cannot afford, a mandate to purchase health insurance fits within this limiting principle, and upholding the ACA will not release the parade of horribles presented as hypotheticals by its opponents.