By: Spencer McAvoy
Over the past week the Supreme Court heard oral arguments on what is certainly the most politically charged case since Bush v. Gore in 2000. The Affordable Care Act is an exceedingly partisan issue that promises to feature prominently in the upcoming election, and health care in general is a subject, which generates strong feelings in many Americans. As evidenced by a recent article entitled “Is Healthcare a Privilege or a Right?,” many Americans, however, fail to understand the concept of legal, constitutionally based argument. The writer of the piece by the LA Times claims the challenge represents an initiative by Republicans that attempts to deny affordable medical coverage to swaths of the American public.
Before continuing, let me be very clear. The argument currently before the Supreme Court is concerned with whether or not the Affordable Care Act is a legal extension of governmental powers as articulated in the Constitution. Even if certain accusations against so-called “pernicious Republican interests” were true, this would have very little to do with the arguments advanced in front of the Supreme Court.
These particular arguments advanced by opponents of the Affordable Care Act offer an interesting set of constitutional challenges, each worthy of extensive assessment in its own right. The challenge considered Tuesday, however, evaluated the constitutionality of the individual mandate. This provision of the Affordable Care Act is perhaps the most publicly debated and divisive issue, and the individual mandate is the only provision which the majority of Americans oppose. Unfortunately for proponents of the act, however, it is also crucial for the law's overall success.
Though the prospect of the federal government forcing nearly every citizen to purchase a product from a private corporation appears blatantly coercive, this is surprisingly hard to prove, as shown by the pedantic questions and arguments employed this past Tuesday. This struggle is largely the product of the radically expansive interpretation of the Commerce Clause adopted by the Court in the 30's, which, though obviously settled precedent, seemed to plague the more conservative Justices throughout the argument. At one point Justice Kennedy, an important “swing-vote,” asked Solicitor General Verrilli, “Well, then your question is whether or not there are any limits on the Commerce Clause. Could you please identify for us some limits on the Commerce Clause?”
Kennedy further illustrated his point, remarking tiredly, “...the government tells us that's because the insurance market is unique [the reason it must be regulated in this way]. And in the next case, it'll say the next market is unique.” Perhaps, after nearly a century of aggressive expansion of federal power, the routine is getting tedious for the more conservative Judges like Kennedy.
Back when the idea of a challenge to the Affordable Care Act was proposed, however, the notion was ridiculed from some corners and dismissed as wishful thinking by others. Now, due to the questions asked by both Chief Justice Roberts and Justice Kennedy, and to the arguments advanced by both Mr. Clement and Mr. Carvin, it appears that there is a significant chance that President Obama's biggestlegislative achievementwill be overturned entirely.
Why and how could a law aimed at making healthcare more accessible to 40 million Americans violate the Constitution, a document designed to protect the people?
The Affordable Care Act, however, violates the Constitution because the document was written to protect the people from the federal government. For instance, both Mr. Carvin and Mr. Clement advanced the argument that this particular law constitutes forcing Americans into a specific market. Within that market, which constitutes commerce, both men agreed that actions can be regulated, but each objected strongly to the coercive act of forcing entry. The Solicitor General claims all of us are involved in the market for health care already, as nearly every American utilizes those services. Furthermore, roughly 40 million Americans are uninsured, and the majority of these Americans cannot afford health care payments in the event of a catastrophic injury or unexpected, severe illness. As Mr. Carvin points out, however, the choice to be uninsured exerts no effect on the market for healthcare. Only when a person defaults on his or her payment can he or she be considered to be materially affecting commerce.
The moment that best encapsulated the nature of the Constitutional opposition to the Affordable Care Act came at the end of Mr Clement's argument. Justice Sotomayor asked him whether the States could legally pass this act, and Mr. Clement answered in the affirmative. Explaining this assertion, Mr. Clement said, “the States can do it because they have a police power, and that is the fundamental difference between the States on the one hand and the limited, enumerated Federal Government on the other.”
Herein lies the problem with the Affordable Care Act: the act allows federal economic regulation so expansive that it effectively becomes a plenary policing power.
Neither the plaintiffs, nor the counsels, nor the Republican Party is concerned with denying sick Americans access to healthcare. John McCain (R-Az) even proposed a healthcare overhaul with nearly identical goals. His plan, however, was based on incentives, which are not ideal but are significantly less invasive than the personal mandate. These incentives, furthermore, have been proven to pass the constitutional muster on many occasions, in the form of mortgage tax-credits.
People are often shocked by the vehemence with which conservatives oppose seemingly innocuous legislation such as the Affordable Care Act. Why can't they just let this one go, they wonder; it's for a good cause. Whence all the anger? This is not a one-time thing. They have been losing this argument for a century.
Spencer McAvoy is a first-year in the College. An opposing piece in support of the Affordable Care Act will be published shortly to complement this piece.