The constitutionality of the Affordable Care Act is a lively topic at morning coffee. Today a friend sent a link to a pro-ACA argument. Here’s a copy of my response.
This argument has intellectual appeal–I keep expressing it in the shorthand “not to decide is to decide,” meaning inactivity also has consequences–and it’s a concept that the law recognizes in some contexts. In some states, a seller of residential property has a common-law (meaning, judge-imposed as opposed to statutorily-imposed) duty to disclose information about the property that would not be readily apparent or easily discoverable through typical buyer’s diligence. The duty arises just by virtue of the seller’s superior knowledge, whether or not the buyer asks a question that would trigger disclosure, and the seller can be liable for any economic harm the buyer suffers from the seller’s failure to disclose. The legal question, though, is not whether the argument has intellectual appeal. It’s whether regulating inactivity is within Congress’s power under the commerce clause. Answering that question requires looking at prior commerce clause cases to see how the Court has defined the scope of commerce clause power. This author frames the question this way:
the Commerce Clause empowers the federal government to regulate interstate commerce; the American health care system is interstate commerce; and the Affordable Care Act regulates the health care system
That law is not that simple. In 1995 in US v Lopez the Court ruled the Gun Free School Zone Act was beyond Congress’s commerce clause power. The government argued (among other things) that guns are sold in interstate commerce, that guns are often used in connection with the drug trade, which is in interstate commerce, that the presence of guns in schools has a deleterious effect on education, turning out students less able to reach their potential as economic actors, affecting interstate commerce. The Court disagreed, saying there was insufficient nexus between the activity regulated–guns in schools–and Congress’s commerce clause power. If the law were as simple as the writer suggests the Lopez case would have come out the other way, because “guns are in interstate commerce; and the Gun Free School Zone Act regulates gun possession.”
My aim is only to explain the legal context of the ACA challenge. It’s easy to talk about as pure politics, and if the Court eventually strikes down the law in a 5-4 decision I have no doubt the common wisdom will be that it was decided on pure politics. I think the legal discussion is more interesting and intellectually challenging than the binary left/right, democrat/republican, pro-Obama/anti-Obama discussions. It involves fundamental issues about natural rights and individual liberty, as the founding fathers understood them, and the Constitution’s limits on federal government power.