In the Affordable Care Act, Congress addressed the problem of those who cannot obtain insurance coverage because of preexisting conditions or other health issues. It did so through the Act’s ‘‘guaranteed-issue’’ and ‘‘community rating’’ provisions. These provisions together prohibit insurance companies from denying coverage to those with such conditions or charging unhealthy individuals higher premiums than healthy individuals. See §§ 300gg, 300gg–1, 300gg–3, 300gg–4. The guaranteed-issue and community-rating reforms do not, however, address the issue of healthy individuals who choose not to purchase insurance to cover potential healthcare needs. In fact, the reforms sharply exacerbate that problem, by providing an incentive for individuals to delay purchasing health insurance until they become sick, relying on the promise of guaranteed and affordable coverage. The reforms also threaten to impose massive new costs on insurers, who are required to accept unhealthy individuals but prohibited from charging them rates necessary to pay for their coverage. This will lead insurers to significantly increase premiums on everyone. See Brief for America’s Health Insurance Plans et al. as Amici Curiae TTT 8–9. The individual mandate was Congress’s solution to these problems. By requiring that individuals purchase health insurance, the mandate prevents cost-shifting by those who would otherwise go without it. In addition, the mandate forces into the insurance risk pool more healthy individuals, whose premiums on average will be higher than their health care expenses. This allows insurers to subsidize the costs of covering the unhealthy individuals the reforms require them to accept. The Government claims that Congress has power under the Commerce and Necessary and Proper Clauses to enact this solution.
Notice that the purpose of the mandate was to force young healthy people to purchase health insurance in order to reimburse insurance companies for their losses due to required coverage of pre-existing conditions of others. Congress is requiring B to overpay for insurance in order to subsidize A's underpayments.
1. Does the Commerce Clause (plus the N & P Clause) empower Congress to force an unwilling citizen to enter the market for health insurance.
Does Wickard control? Or is this case different from--and beyond the limit established by-- Wickard?
Chief Justice Roberts and 4 other Justices held that the Individual mandate is not within the Commerce power of Congress. What is their reasoning?(p.188):
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 ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him.
But isn't the decision not to purchase health insurance an activity (a decision) that substantially affects interstate commerce?
People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act. That is not the country the Framers of our Constitution envisioned. 567 U.S. at 554.Justice Scalia says that to accept the Government's position would be "to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity."(p.1790
More Scalia :
Here, however, Congress has impressed into service third parties, healthy individuals who could be but are not customers of the relevant industry, to offset the undesirable consequences of the regulation. Congress’ desire to force these individuals to purchase insurance is motivated by the fact that they are further removed from the market than unhealthy individuals with pre-existing conditions, because they are less likely to need extensive care in the near future. If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, ‘‘the hideous monster whose devouring jaws...spare neither sex nor age, nor high nor low, nor sacred nor profane.’’ The Federalist No. 33, p. 202 (C. Rossiter ed. 1961). --567 U.S. at 652-653.
Do you agree?
Justice Ginsburg argues that (p.194 partially edited):
Given these far-reaching effects on interstate commerce, the decision to forgo insurance is hardly inconsequential or equivalent to ‘‘doing nothing’’; it is, instead, an economic decision Congress has the authority to address under the Commerce Clause....
The minimum coverage provision, furthermore, bears a ‘‘reasonable connection’’ to Congress’ goal of protecting the health-care market from the disruption caused by individuals who fail to obtain insurance. By requiring those who do not carry insurance to pay a toll, the minimum coverage provision gives individuals a strong incentive to insure. This incentive, Congress had good reason to believe, would reduce the number of uninsured and, correspondingly, mitigate the adverse impact the uninsured have on the national healthcare market.
If we accept Justice Ginsburg's reasoning, could Congress have required all American's to purchase wheat in order to increase the price of wheat (or pay a penalty for filing to do so)? Is this the same thing as requiring farmers who produce too much wheat to pay a penalty for overproducing?
If Congress can regulate inactivity that affects Commerce, is there any limit to the Commerce power? What would it be? Every day I don't buy some product or service and doesn't my failure to buy (along with the failure of others to buy) affect the interstate market for those things we don't buy?
What about the N & P Cluse? Does that give Congress the additional power to regulate non-activities that are Necessary to its regulation of interstate Commerce? See Roberts (567 U.S. at 559-560):
As our jurisprudence under the Necessary and Proper Clause has developed, we have been very deferential to Congress’s determination that a regulation is ‘‘necessary.’’ We have thus upheld laws that are ‘‘ ‘convenient, or useful’ or ‘conducive’ to the authority’s ‘beneficial exercise.’ ’’ Comstock, 560 U. S., at (slip op., at 5) (quoting McCulloch, supra, at 413, 418). But we have also carried out our responsibility to declare unconstitutional those laws that undermine the structure of government established by the Constitution. Such laws, which are not ‘‘consist[ent] with the letter and spirit of the constitution,’’
McCulloch, supra, at 421, are not ‘‘proper [means] for carrying into Execution’’ Congress’s enumerated powers. Rather, they are, in the words of The Federalist, ‘merely acts of usurpation’ which ‘deserve to be treated as such.’ ’’ Printz v. United States, 521 U.S. 898, 924 (1997); see also New York, 505 U. S., at 177; Comstock, supra, at (slip op., at 5) (Kennedy, J., concurring in judgment) (‘‘It is of fundamental importance to consider whether essential attributes of state sovereignty are compromised by the assertion of federal power under the Necessary and Proper Clause TTT’’)....
Even if the individual mandate is ‘‘necessary’’ to the Act’s insurance reforms, such an expansion of federal power is not a ‘‘proper’’ means for making those reforms effective.
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