If the Health Care Mandate is Unconstitutional, Then What?

Editor’s note: A version of this article first appeared in the Pittsburgh Post-Gazette. Neither Porter nor his firm are involved in the ACA litigation.

This summer, the Supreme Court will decide whether Congress violated the Constitution when it enacted the Patient Protection and Affordable Care Act, which contains an “individual mandate” requiring virtually every American to purchase health insurance. Based on the Constitution’s text and structure, and judicial interpretations of the relevant provisions, the mandate should be struck down.

Pennsylvania is one of 26 states to have attacked the ACA’s constitutionality. They seek to uphold the Constitution’s basic division of power between the national government and state governments.

The framers and those who ratified the Constitution withheld from Congress a plenary police power to enact any law that it deems desirable. Instead, the powers granted to Congress in Article I of the Constitution are limited and enumerated. The 10th Amendment emphasizes this structure by affirming that all powers not given to Congress “are reserved to the States respectively, or to the people.”

Given that background, the states’ argument against ACA is simple: Even under the broadest interpretation, Congress’ enumerated powers do not authorize a federal law that forces individuals to purchase health insurance.

ACA’s defenders argue that Congress’ authority to impose the mandate is granted by any of three constitutional provisions: the Commerce Clause, the Necessary and Proper Clause, or the Taxing Clause. However, under the original understanding of those provisions and the more expansive interpretation given to them by the Supreme Court in recent decades, the mandate is an unprecedented assertion of federal control that violates the framers’ constitutional design.

Under the Commerce Clause, Congress may regulate interstate commerce. As originally understood, “interstate commerce” meant cross-border trade or exchange, as distinguished from other types of business activity such as manufacturing and agriculture. Subsequent Supreme Court decisions have expanded the term to include instances of intrastate “economic activity” if that activity, “viewed in the aggregate, substantially affects” interstate commerce.

ACA’s defenders argue that the law regulates economic activity with a substantial effect on interstate commerce, namely the manner in which individuals insure against their future purchase of healthcare services. But the individual mandate does not regulate anyone’s ongoing activity—those who are subject to it are strangers to the insurance market. Rather, the law compels inactive, nonparticipants in the health insurance market to purchase insurance so they can then be regulated.

As Congress itself said in the ACA, the mandate purports to regulate each individual’s “economic and financial decision” whether to purchase health insurance. But if that is a valid exercise of Commerce Clause power, then there is literally no end to Congress’ power over individuals.

Congress could require people to buy a car because refraining from doing so is an “economic decision” substantially affecting the automobile industry. Congress could require us to purchase a television or a computer because engaging in quiet reflection rather than watching TV or surfing the Internet is an “economic decision” that substantially affects national markets for entertainment and communication.

The possibilities are endless, and these examples are not mere hyperbole. In the case on appeal to the Supreme Court, the federal government could not identify any mandate to purchase a product or service that would be unconstitutional under this elastic interpretation of the Commerce Clause.

ACA’s defenders also argue that the mandate is supported by the Necessary and Proper Clause, which gives Congress wide latitude to determine what laws are necessary for the implementation of Congress’ enumerated powers. Specifically, the mandate is allegedly necessary to allow for other regulations and price controls (such as a ban on considering pre-existing conditions) that otherwise render the law unworkable and threaten to destroy the health insurance market.

The problem with this argument is that the individual mandate is neither “necessary” nor “proper.” A law is not “proper” if it depends on a constitutional theory that gives Congress unbounded discretion to legislate in areas traditionally reserved to the states. And a law is not “necessary” unless it carries into execution another enumerated power, such as the power to regulate interstate commerce.

The ACA flunks both of these tests. Rather than enabling the exercise of an enumerated power, the mandate compels individuals to buy insurance in an attempt to suppress the ruinous effects of ACA’s other provisions. Don’t expect the Supreme Court to ignore constitutional limitations just because Congress claims an unenumerated power to offset regulatory burdens created by its own statute.

Finally, ACA’s defenders argue that even if the individual mandate is not supported by the Commerce Clause or the Necessary and Proper Clause, it is nevertheless constitutional because it is a tax. For example, the penalty for noncompliance is calculated as a percentage of household income for income tax purposes, and it is self-declared on the taxpayer’s income tax return.

Congress foreclosed this argument by separating the individual mandate from the penalty. The mandate itself offends the constitutional separation of powers; it cannot be saved by pointing to a penalty for noncompliance.

In any event, the monetary fine was deliberately structured as a “penalty” and not as a “tax.” Congress could have provided health insurance for all Americans by invoking its Article I power “[t]o lay and collect Taxes,” but following President Barack Obama’s lead, it refused to do so for political reasons.

The federal government’s Taxing Clause argument has been rejected by every court that has reviewed the ACA, and the Supreme Court is not likely to adopt it, either. Nor should it.


— David J. Porter, J.D., is an attorney with Buchanan Ingersoll & Rooney PC, a trustee of Grove City College, and a contributor to The Center for Vision & Values. The opinions expressed by the author are his own and do not necessarily reflect those of Grove City College, its Board of Trustees, or his firm. 

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  • Joe DeVet

    It will be a great thing if the mandate is struck down.  Yet a greater thing if the Court decides that the whole law, without the mandate, is null and void.  But the phoenix of Obamacare will rise up out of its own ashes if we keep the Son of Lies in power.  We must be rid of Obamacare root and stem, and to do that, we need regime change.  Catholics must do their civic duty this November.

  • Victoria

    “Congress could have provided health insurance for all Americans by invoking its Article I power “[t]o lay and collect Taxes,” but following President Barack Obama’s lead, it refused to do so for political reasons.” This is key. What we need is to expand Medicare, giving us a publically funded, privately delivered healthcare system that would cover everyone and not put exorbitant profits into anyone’s pockets. Not perfect, but far better than the mess we have.

  • mary_love

    The government (State or Federal) has no business mandated private employers, Catholic or otherwise, to provide what has been up to now an employee benefit. The Affordable Health Care Act so far seems to do nothing in reforming the health care in the US; it only shifts the costs to a huge bureaucracy which is only going to become a haven for misuse, poorly controlled handling of funds and fraud.

    If McDonald’s, many Unions, the Amish and some Christian groups have been exempted from the so-called Affordable Health Care Act, why can’t the Catholic’s be exempt from just this one part of it? All Catholic institutions and most Catholic employers offer their employees excellent health care insurance and this is being threatened by the executive branch of our Gov’t because we are not at liberty to violate our consciences and the only other choice given is to drop the coverage and pay a hefty fine. What kind of free democracy do we live in? “Give me Liberty or give me death”

  •  Medicare and Medicaid are ready to implode.  Trillions of unfunded liabilities.  States budgets pay about 20% of their funds to Medicaid alone.  Obamacare would of exploded the costs by dumping another 50B of liabilities to the states (to start) and up the poverty line to 134%.  In Medicare, the reimbursement rates are so low that more and more doctors won’t take in new patients or charge private insured policies more to make up the difference.

    After 20 years in the healthcare biz, gov’t involvement has made is worse.

    The current system is a mess and Obamacare would of made it worse.

  • Fadams3783

    We live in a constitutional republic, not a democracy. as Ben Franklin said……”If we can keep it!”

  • B. Johnson

    Surprise!  Regardless that Obamacrats want the USSC to decide Obamacare in Congress’s favor, the USSC has already historically clarified that regulating healthcare is beyond the scope of Congress’s Section 8-limited powers.

    More specifically, what the mainstream media isn’t telling people about Obamacare is the following.  Previous generations of justices have already clarified that public healthcare is a state power issue. This is evidenced by the terms “health laws” and “medical practice” in the following excerpts from case opinions.  Note that some of the excerpts address healthcare laws and reflect the limits of Congress’s Commerce Clause powers in a single sentence.

    “State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress.” –Justice John Marshall, Gibbons v. Ogden, 1824.
    Note that Justice Barbour referenced the above excerpt in New York v. Miln, expanding it as follows.
    “Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a state and those which respect turnpike roads, ferries, &c., are component parts of this mass.” –Justice Barbour, New York v. Miln, 1837.
    And before Constitution-ignoring socialist FDR nuked the Supreme Court with activist justices, Constitution-respecting justices had reflected on the excerpts above by clarifying in Linder v. United States that the states have never granted Congress the constitutional authority to stick its big nose into intrastate medical practice.
    “Direct control of medical practice in the states is obviously beyond the power of Congress.” –Linder v. United States, 1925. (But evidenly not obvious to Obama, Reid and Pelosi.)

    And for the icing on the cake concerning not only unconstitutional federal Obamacare, but also constitutionally unauthorized federal taxing and spending beyond healthcare issues, Justice John Marshall had clarified that Congress is prohibited from laying taxes in the name of state power issues.

    “Congress is not empowered to tax for those purposes which are within the exclusive province of the States.” –Justice John Marshall, Gibbons v. Ogden, 1824.

    Finally, given that the Court has already clarified that healthcare is a state power issue, individual states free to experiment with their own healthcare programs, the real reason that the constitutionality of Obamacare is now being challenged is the following.  The 111th Congress wrongly ignored Article V of the Constitution which requires Congress to first successfully petition the states to ratify a proposed amendment to the Constitution which would have granted Congress specific new power, the power to regulate public healthcare in this case, before establishing Obamacare.  And Congress has been wrongly ignoring its constitutionally limited powers and Article V since FDR was president; Article V is arguably the best kept secret of the unconstitutionally big federal government.

  • mary_love

    Our Government is based on the Constitutional Republic idea, not a pure Democracy. In a pure democracy the majority decides the outcome; this is also true in a republic except that in a republic the inalienable rights of the person trumps the majority opinion. Example: if there are four lions and three lambs and they are voting on what to eat for dinner; in a republic the lambs live, in a democracy…
    Yet, because of the Roe vs Wade decision and so a called “penumbra” of the right to privacy (yeah right) we have the rite of the slaughter of millions of innocent lambs. 50 million in the last 39 years and 1.2 million per year and counting which as long as Catholics continue to vote for the Dems then it will continue indefinitely, God help us and may His Holy Angels protect the unborn.