The Supreme Court and the Affordable Care Act (Obamacare)

Congress already has the power to forbid you to grow your own apples. Now the Supreme Court will decide, can Congress force you to buy broccoli? Photo: Associated Press

NATCHITOCHES, March 27, 2012—The Supreme Court is listening this week to arguments about four separate issues regarding the Patient Protection and Affordable Care Act (PPACA, or ObamaCare).

  1. Does the Anti-Injunction Act allow them to rule on the issue at all? That act doesn’t allow the Court to rule on the constitutionality of a tax until the tax is levied. If the penalty for not buying health insurance is a tax, it won’t be levied until 2014. Thus the Court might punt the decision to 2015, avoiding another foray into politically supercharged waters.
  2. Is the individual mandate, the provision that everyone not covered by an insurance plan must buy a minimal level of insurance coverage or pay a fine, constitutional?
  3. If the individual mandate is not constitutional, is it severable from the rest of PPACA? That is, can the rest of the law stand if the mandate is struck down?
  4. Can the states be required to expand Medicaid coverage to an additional 17 million low income Americans?

The first issue was argued on Monday, the second today (Tuesday), and the third and fourth will be argued tomorrow. While all of these, especially the fourth, are important, it’s the constitutionality of the individual mandate that gets most people excited.

The Commerce Clause of the Constitution says that Congress shall have power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” In 1942, in Wickard v. Filburn, the Supreme Court upheld the Agricultural Adjustment Act of 1938 and ruled that Congress could set quotas for the amount of wheat an individual could grow on his own land for his own consumption. By withdrawing from the market, he and others like him could affect the interstate market for wheat, and so wheat production for private use could still be regulated under the Commerce Clause.

To be clear, Wickard means that Congress has the constitutional power to stop you from growing apples and making apple pies or knitting sweaters for the grandkids if it disturbs congressional plans to support the prices of Marie Callender’s pies and Wal Mart sweaters. That Congress doesn’t stop you from baking pies is a matter of politics rather than Constitutional restrictions on its power.

Until now, Congress has acted to keep you out of markets, not to force you into them (your mandatory purchase of automotive insurance is predicated on your voluntary decision to buy a car, not on the mere fact that you’re alive). Hence interest in PPACA. If it’s upheld, then Justice Kennedy quite rightly notes that it marks a fundamental change in the relationship between government and governed.

There are various reasons given for extending the Commerce Clause to the individual mandate:

  1. The health care sector of our economy is enormous, about 17 percent of the total GDP, and so it is clearly an appropriate target for regulation. And it is clearly true that the sector involves trade across state lines. But then we might ask, is size of the market a criterion for forcing people to participate in certain ways? The market for food is likewise enormous. As Justice Scalia asked, can the Federal Government therefor force you to eat broccoli?
  2. Everyone will need medical care at some point in life. If you have to subsidize unhealthy people now, at some point you will be subsidized. Thus, according to Justice Ginsburg, the individual mandate is more like Social Security than like the supermarket. But then isn’t every market for things we might need but can’t afford, from food to housing to clothing, one in which people should be forced to participate in specific ways? How is health care fundamentally different from food and shelter?
  3. Supermarkets aren’t required to give food to hungry people. Hospitals are required to provide medical care to anyone who shows up in the emergency room. Therefore food and health care aren’t comparable markets. But if they aren’t, that’s only because policy makers have made them different by the laws they’ve passed.

Suppose that Congress passes a law requiring restaurants to feed hungry people. Restaurants will surely go broke giving away free food. To ensure that this doesn’t happen, Congress passes another law requiring you to eat at a restaurant once a week, whether you want to or not. If you don’t do it, you’ll be fined. It argues that food is essential, different from other products, and that because we must all eat, we all participate in the market in some way. And who has food today might be hungry tomorrow, so requiring you to subsidize the food that’s given away to the hungry today is reasonable.

The constitutional questions involved here aren’t as simple as this example suggests, but it makes clear a couple of points. First, the difference between the market for health insurance and other markets isn’t fundamental to the nature of health insurance, but is due more to policy decisions that have shaped the market. Second, there’s no logical limit to the government’s power to force people into markets if the individual mandate stands.

If the government’s goal is to provide universal health insurance coverage, even for people who are already ill or have preexisting conditions, then the individual mandate is necessary. There can be no affordable universal coverage without it. But we should be clear that in exchange for some result that is generally considered good, we’re willing to make economic liberty dependent only on the whims of politicians, not on the basic law of the land.

That is a fundamental change that should give us pause.


James Picht is the Senior Editor for Communities Politics and teaches economics at the Louisiana Scholars’ College in Natchitoches, La., where he went to take a break from working in Moscow and Washington. But he fell in love with the town and with the professor of Romance languages, so there he stayed. Now he teaches, annoys his children, and makes jalapeno lemonade. He pays too much for health insurance and figures that if he’s covered under PPACA, he’d rather just drop his insurance and pay the fine. He tweets, hangs out on Facebook, and has a blog he totally neglects at


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Jim Picht

James Picht is the Senior Editor for Communities Politics and teaches economics and Russian at the Louisiana Scholars' College in Natchitoches, La. After earning his doctorate in economics, he spent several years working in Moscow and the new independent states of the former Soviet Union for the U.S. government, the Asian Development Bank, and as a private contractor. He returned to Ukraine recently to teach principles of constitutional law and criminal procedure at several Ukrainian law schools for a USAID legal development project. He has been writing at the Communities since 2009.

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