SCOTUS Docketwatch–Breakdown of the Court’s Opinion Upholding the Constitutionality of the Individual Mandate Pt. 1

By the Numbers:

• 4 Justices (Alito, Kennedy, Scalia, Thomas) dissented from the majority, and would have scrapped the entire Affordable Care Act as unconstitutional
• 4 Justices (Breyer, Ginsburg, Sotomayor, Kagan) concurred with the Majority Opinion, finding the Affordable Care Act Constitutional.  Unlike the Majority Decision written by Chief Justice Roberts – they would say that the Commerce Clause does permit Congress to penalize persons for not purchasing health insurance.  This legal reasoning, however, IS NOT controlling Law!
• 1 Chief Justice Roberts, acting as a tiebreaker in the 4-4 deadlock to find the ACA’s individual mandate Constitutional.  In his CONTROLLING MAJORITY OPINION, (joined by Breyer, Ginsburg, Sotomayor, and Kagan), the ACA’s individual mandate is constitutional under Congress’s taxing power.
• 5-4 vote, to uphold the Constitutionality of the Individual Mandate

Now for the fun.  The High Court released a complicated decision that rejects the Obama Administration’s main argument sustaining the Individual Mandate while at the same time declaring the Mandate constitutional. 

First – The Court’s decision agreed with TrainofThought Reader Luke’s line of thinking (well done Luke!) that:

The Individual Mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the grounds that failure to do so affects interstate commerce. (p 20)

Roberts saw the Mandate as constitutional, but he also did not want to increase the scope of the Commerce Clause to allow the government even broader powers over citizens:

Given its expansive scope, it is no surprise that Congress has employed the commerce power in a wide variety of ways to address the pressing needs of the time. But Congress has never attempted to rely on that power to compel individuals not engaged  in commerce to purchase an unwanted product. (emphasis added, p 18)

Robert’s line of reasoning boils down to the idea that Congress can regulate commerce, but they cannot actively create commerce by compelling someone to buy something.  Remember in the Briefs, the Government’s counter was that everyone was “Active in the Market for Healthcare” and that at some point everyone in the future will get sick and require services – creating a unique market in which everyone (regardless of whether they buy insurance now, or wait until later, or not buy at all) will be involved in the market.

The Court bluntly rejected this idea, stating that “That concept has no constitutional significance.” (p 25).  This characterization is significant because it kills the government’s argument to regulate the uninsured as a class, under the idea of regulating the uninsured, or not buying insurance as an economic class under the Commerce Clause.  (For details, refer back to the argument in Raich v. Gonzales, 545 U.S. 1 (2005))

Simply put, the act of having to buy health care in the future does not justify using the commerce clause to allow Congress to mandate the purchase of health insurance now. The Court states that “prophesized future activity finds no support in precedent” (p 26).  The rule, as construed by the Majority, is that proper exercise of the Commerce Clause requires the regulation of a “Pre-existing Economic Activity”; i.e not some theoretical (however likely or unlikely) need for health care 30 years from now.

So, bottom line:

(1) The Individual Mandate fails under the Commerce Clause, because Congress cannot create commerce, or compel commerce in order to regulate it.  Here the Court saw the mandate as Congress trying to compel commerce penalizing inactivity, the choice to NOT purchase insurance.

**NOTE: In tomorrow’s post about the Tax Power, inactivity is treated differently when it comes to taxes:

The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity. But from its creation, the Constitution has made no such promise with respect to taxes (41-42)

(2) Court Majority (really only Roberts) is concerned with giving Congress too much power under the Commerce Clause, concern then that Government could make same argument to compel food purchases, exercise programs, etc..

Tomorrow – discussion on why the Mandate stands a valid exercise of Congress’s Tax Power, and the authority on why the Court would even consider the idea.  As usual, send questions to the comments.  And please don’t ask about Wickard, I can only do so much . . .