Tuesday, March 27, 2012

SCOTUS Docketwatch–Constitutionality of the Affordable Care Act: DAY 2 Pt. 1

Today’s oral arguments before the Supreme Court focused on one fundamental issue – Whether the minimum coverage provision (the individual mandate) is a valid exercise of Congress’s powers under the Commerce Clause of the Constitution. 

Background –The Commerce Clause of the US Constitution allows Congress to regulate Interstate Activity.  The question of what exactly constitutes “interstate activity” can be tricky, but  the modern era of the Court  has allowed a broad interpretation (and as 6.54 puts it, “comically broad”) that has tended to uphold Congressional action.

Court’s Approach to Commerce Clause – Generally, Congress is permitted to regulate 1)Instrumentalities of interstate commerce/ persons/things in Commerce stream, 2) Channels of commerce and 3) Activities that substantially affect interstate commerce  (see Gonzales v. Raich, 545 U.S. (2005)). If Congress is looking in the 3rd set of activities, then it also has the power to “regulate purely local activities that are part of an economic class of activities that have a substantial effect on interstate commerce.”  This power allows Congress to regulate the entire class of economic activity.  In this case – health costs and purchasing health insurance.

Main Issue Before The Court –  Whether or not requiring individuals to purchase health care insurance (note: WashPost has an excellent description of exactly who is required and who is not) qualifies as an economic activity, that is subject to government regulation.  Specifically, does the decision to not purchase health insurance qualify as an economic activity that has a substantial effect on that nation’s health insurance costs and markets. And if so, are there limits to what the government can require an individual to purchase?

Summary of Administration’s Main Argument – In the Petitioner’s Brief, Solicitor General Verrilli argues that the minimum coverage provision “regulates economic activity that substantially affects interstate commerce” (p 23).  Simply put, everyone is already engaged in the health insurance economic activity, whether they choose to purchase insurance or not. The uninsured cost over $40 billion of health care costs that are transferred to other taxpayers.  This ‘activity’ then constitutes the economic conduct that effects interstate commerce – “namely the way in which individuals finance their participation in the health care market” (p 18).

Summary of Opponent’s Main Argument – In the Respondent’s Brief, Former President Bush SG Paul Clement argues that the minimum coverage provision violates the commerce clause.  Opponents argue that Congress cannot compel an individual to enter into commerce (i.e. by requiring the purchase of health insurance) in order to regulate their behavior. To regulate commerce “presupposes the existence of commerce to be regulated” (p.16). In broader terms – opponents see the law as an unbounded assertion of federal power that if allowed, has virtually no limits on what the government can require an individual to do.


There are a few other arguments in play, but these are the big ones. I’ll have more as the Court transcript becomes available.  Leave your thoughts in the comments.  As for me – my gut tells me this will come down to which side can sway Justice Kennedy to agree with them. 


  1. Great summary, rb!

    My belief is that a ruling in favor of the individual mandate would be too broadly applicable to other situations.

    For instance and in keeping with the healthcare theme, a person's decision to smoke, to not exercise, and to not eat healthily all have a substantial effect on interstate commerce, and all would fall under things that could be potentially regulated by the federal government if this ruling goes through, in my opinion.

    At least that is how it appears to me. What do you think? Is there something I am not seeing that would limit this decision to only being applicable to this situation?

  2. Thanks for commenting Luke.
    Excellent points - your argument pretty much mirrors the Court's line of questioning today.

    I originally had a write up for the comments, but I think it'll read better if I incorporate into my Part 2 post. Should be up within the hour.