A federal court in Florida ruled today that the Affordable Care Act’s individual mandate violated the Commerce Clause and, because the court found the individual mandate could not be severed from the rest of the Act, declared the whole law unconstitutional. I’ve not carefully read the court’s 78-page opinion, but I’ve read enough to see it relies on activity argument noted in prior posts on this subject:
It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting — as was done in the Act — that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted. It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.
The court concludes that failure to purchase health insurance is not an activity. The court rejects the argument that the “three unique elements of the health care market” (no one can opt out, hospitals arerequired to provide care regardless of ability to pay, and unpaid costs are shifted to third parties) relied on by the government are “constitutionally significant.”
What if only one of the three factors identified by the defendants is present? After all, there are lots of markets — especially if defined broadly enough — that people cannot “opt out” of. For example, everyone must participate in the food market. Instead of attempting to control wheat supply by regulating the acreage and amount of wheat a farmer could grow as in Wickard, under this logic, Congress could more directly raise too-low wheat prices merely by increasing demand through mandating that every adult purchase and consume wheat bread daily, rationalized on the grounds that because everyone must participate in the market for food, non-consumers of wheat bread adversely affect prices in the wheat market. Or, as was discussed during oral argument, Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system.
Upholding the individual mandate would require piling “inference upon inference” to support an attenuated link between “what is being regulated and its effect on interstate commerce.”
Regarding the argument that the decision to forgo the purchase of health-care insurance is an activity, the court states-
There is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort. The decisions of whether and when (or not) to buy a house, a car, a television, a dinner, or even a morning cup of coffee also have a financial impact that — when aggregated with similar economic decisions — affect the price of that particular product or service and have a substantial effect on interstate commerce. To be sure, it is not difficult to identify an economic decision that has a cumulatively substantial effect on interstate commerce; rather, the difficult task is to find a decision that does not.
This is significant because “‘economic decisions’ are a much broader and far-reaching category than are ‘activities that substantially affect interstate commerce.'” The court ends the Commerce Clause analysis with this paragraph:
Because I find both the “uniqueness” and “economic decision” arguments unpersuasive, I conclude that the individual mandate seeks to regulate economic inactivity, which is the very opposite of economic activity. And because activity is required under the Commerce Clause, the individual mandate exceeds Congress’ commerce power, as it is understood, defined, and applied in the existing Supreme Court case law.