Dean and Distinguished Professor of Law,
University of California, Irvine School of Law
Under current constitutional law, the federal health care law is clearly constitutional. I predict that the Court will uphold the Act and that the decision will not be close.
Perhaps the most important question before the Supreme Court is whether Congress has the authority to require that individuals either purchase health insurance or pay a penalty. This is constitutional under Congress's power, pursuant to Article I, section 8 of the Constitution to regulate commerce among the states.
Since United States v. Lopez in 1995, the Court has used a three-part test for determining whether a federal law is constitutional under the commerce power. Under the third prong of this test, Congress may regulate economic activity which taken cumulatively across the country has a substantial effect on interstate commerce.
It is important to remember that the Supreme Court has said that all that is required is that Congress have a rational basis for believing that it is economic activity that has a substantial effect on interstate commerce. There are thus two questions in assessing whether the individual mandate is within the scope of the commerce power. First, could Congress reasonably believe that it was regulating economic activity? Second, if so, looked at in the aggregate, could Congress reasonably believe that there is a substantial effect on interstate commerce?
It is the former which opponents of the law, including judges who have struck it down, have focused on. They contend that people who do not wish to purchase health insurance are inactive and that Congress cannot regulate inactivity. They argue that it is unprecedented for Congress to require an economic transaction and that if Congress can require purchasing of health insurance, there is no stopping point in terms of what Congress can force people to buy.
The key flaw in this argument is its failure to recognize that literally everyone will at some point need to use the health care system. Children must be vaccinated to attend school. If a person contracts a communicable disease, the government can require that it be treated. If a person is in a car accident, the ambulance will take him or her to the nearest emergency room for treatment.
Therefore everyone faces an economic choice: whether to purchase health insurance or whether to self-insure. Either is economic activity. Congress is regulating this economic choice by imposing a penalty on those who choose to self-insure in order to create a system where all can have access to the health care system. Opponents of the health care law say that if it is upheld then the government can force people to buy an American car or to eat broccoli. But a person can opt to not drive or not to eat vegetables; no one realistically can opt out of health care.
The second question then becomes whether taken cumulatively the law has a substantial effect on interstate commerce. Health related spending is $2.6 trillion in 2009, or 18% of the national economy. Health insurance is an $850 billion industry. In the last case to deal with the scope of Congress's commerce clause power, Gonzales v. Raich in 2005, the Court held that Congress constitutionally could criminally prohibit and punish cultivation and possession of a small amount of marijuana for personal medicinal use. If Congress has the power to prevent Angela Raich from growing a small amount of marijuana to offset the ill effects of chemotherapy, then surely it has the authority to regulate a two trillion dollar industry.
The individual mandate also can be defended as constitutional under Congress's power to tax and spend and through the necessary and proper clause. As a matter of constitutional law, this should not be a close or difficult question.