Guest column: Despite current Supreme Court case, Affordable Care Act supported by judicial precedent

Jason Febery

One of the enduring truths about politics is that the party in the minority will always find a reason to become outraged at whatever is being done by the party in the majority.

It happened during the Bush years, when Democrats blamed Republicans for rising gas prices — even though presidents have little influence over the price of crude oil. And it’s happening again, only this time Democrats control the White House and Senate.

So far, the greatest cause of Republican outrage has been the Patient Protection and Affordable Care Act, better known as “Obamacare.” The worst part about the legislation, according to most Republicans, is the individual mandate, which requires every citizen to purchase health insurance or else face a penalty.

The passage of health care reform prompted 22 state attorneys general and four governors to file a lawsuit questioning the constitutionality of the individual mandate. Their argument was that the Constitution does not grant the federal government the authority to force private citizens to purchase any type of product or service such as health insurance. Fast-forward two years and the case against health care reform has advanced all the way to the Supreme Court, which is scheduled to finish hearing oral arguments Wednesday afternoon.

Even though the Supreme Court has leaned conservative in recent years, I am not worried. The individual mandate is sound public policy, conceived by the conservative Heritage Foundation and once championed by all three current frontrunners for the Republican nomination (Mitt Romney, Rick Santorum and Newt Gingrich).

Previous bipartisan support is not enough, of course, to make unconstitutional legislation constitutional. But it does provide context to a fight that is more about political posturing than public policy.

Why else would we still be talking about this? Virtually all non-partisan legal scholars agree that the individual mandate is supported by decades of judicial precedent surrounding the Commerce Clause, which gives Congress the authority to regulate a broad range of economic activity (see Heart of Atlanta Motel v. United States, Daniel v. Paul and Gonzales v. Raich).

Opponents of the individual mandate try to argue that the authority granted by the Commerce Clause does not extend to economic inactivity, such as the decision not to purchase health insurance, but their argument falls short for a few reasons.

First, the idea that the uninsured aren’t engaging in commerce is a canard. In 2008, the uninsured consumed $116 billion of health-related services and drove up premiums for insured families by an average of $1,000. That sounds like a whole lot of commerce to me.

Second, the Supreme Court has never meaningfully distinguished between economic activity and inactivity. It has treated them as two sides of the same coin. Think of it this way, Congress often uses tax credits to incentivize economic activity. If you buy a 2011 Nissan Altima hybrid, for instance, you will receive a $2,350 rebate. Own a home? You are eligible to save thousands of dollars each year with a mortgage interest tax deduction.

Both of these programs are funded with taxpayer dollars. The more the programs cost, the more Congress has to raise taxes in order to pay for them. The inevitable result is that taxpayers who don’t purchase a car or home end up subsidizing tax deductions for those who do. There is no difference, in this sense, between raising taxes on the inactive to pay for economic incentives and penalizing the inactive through raised taxes, which is what the individual mandate does. It’s just a matter of semantics.

To drive home the point about regulating inaction, let me give another example: the draft. The Supreme Court has ruled that requiring people to fight in a war is perfectly constitutional — not under the aforementioned Commerce Clause but under the Necessary and Proper Clause.

The difference between clauses is trivial. If the draft is constitutional, then it must be constitutional to ban inaction, which is just one logical step away from the individual mandate.

Perhaps an even more clear-cut example of regulating inaction comes from Wickard v. Filburn, a case about Depression-era production quotas. The defendant in the case, Roscoe Filburn, wanted to grow more wheat than was permitted. Even though the excess wheat was for personal use, the Supreme Court ruled against Filburn, concluding that his actions involved a failure to purchase wheat in the general market and would, in aggregate, undermine agricultural price levels. This case clarified that Congress can compel purchases within an existing private market if non-purchase adversely impacts other participants — a close parallel to the “free rider” problem for health insurance.

Given the Filburn case and the abundance of similarly relevant and binding judicial precedent, I am convinced that the Supreme Court will uphold the constitutionality of the individual mandate and consign this most recent saga over health care reform to the history books.

Daily Illini, U. Illinois via UWIRE