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October 19, 2011

The constitutionality debate continues

Gavel, stethoscope and caduceus sign on books background. Mediicine laws and legal, medical jurisprudence.

The constitutionality of the Patient Protection and Affordable Care Act (PPACA) eventually will be determined by the U.S. Supreme Court. As of June 2011, five federal district courts (trial courts) have ruled on the issue. Three courts have upheld the law; one court struck down the mandate that individuals acquire health insurance; and one court struck down the entire law.

Starting in 2014, the PPACA requires citizens and legal residents of the United States to obtain health insurance unless they meet certain narrow exceptions, such as being a member of a recognized religious sect that is conscientiously opposed to accepting public or private health insurance benefits. Persons who do not obtain health insurance will be required to pay a monetary penalty with their tax returns.

The district court rulings are being appealed to the U.S. Circuit Court of Appeals in different circuits. When one or more of the Circuit Courts of Appeal issue their rulings (probably in the summer or fall), the Supreme Court is very likely to take the case(s) and settle the issue.

Challenges under the Commerce Clause 

The primary legal challenge is based on the Commerce Clause to the United States Constitution. Article I, Section 8, clause 3 of the Constitution gives Congress the power "To regulate Commerce … among the several states."

Since the New Deal in the 1930s, the Supreme Court has held Congress has the power to regulate activities that have a "substantial effect" on interstate commerce.

The plaintiffs in cases challenging the PPACA argue that a person’s decision not to acquire health insurance is not an economic activity under the meaning of the Commerce Clause. Rather, they say, the decision not to buy insurance is an inactivity which should be outside the reach of regulations by Congress.

For more than 70 years, the Power of Congress to enact legislation under the Commerce Clause has been quite broad. In Wickard v. Filburn (1942), for example, the Supreme Court considered the constitutionality of a law that set limits on the number of acres of wheat that could be grown in an effort to control supply and avoid prices that were considered too low. An Ohio farmer objected to a penalty that was imposed on him for growing an extra 239 bushels of wheat, arguing that he and his animals were going to consume his wheat and, thus, the wheat would not be sold on the open market and have an effect on interstate commerce.

The Supreme Court disagreed. The Court said even though the individual farmer’s action could be local, when the farmer’s action was combined with the actions of other farmers, the actions would have a substantial effect on interstate commerce. Thus, the farmer’s individual actions could be regulated by Congress. Similarly, in another case, the Supreme Court held that Congress had authority under the Commerce Clause to regulate home-grown marijuana, even if it was used only by the grower for medicinal purposes as permitted by state law (Gonzales v. Raich, 2005).

Power not unlimited

Congressional power under the Commerce Clause is not unlimited, however. In 1995, the Supreme Court struck down a law that made it a criminal offense to possess a firearm in a school zone. The court acknowledged that violence by firearms placed burdens on society, but found the regulation not sufficiently tied to economic activity or interstate commerce to be justified under the Commerce Clause. (United States v. Lopez, 1995).

The district courts that upheld the PPACA drew an analogy to Wickard, the case involving growing of wheat. The Michigan case of Thomas More Law Center v. Obama (2010) said that decisions of individuals to not purchase health insurance "viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers, and the insured population who ultimately pay for the care provided to those who go without insurance." The court noted that persons who have chosen not to purchase health insurance and are not able to pay for their own health care have collectively shifted $43 billion in cost to other market participants. (The court cited data from 2008.)

From health insurance to broccoli

On the other hand, a court in Florida held that Congress had gone too far when mandating that individuals purchase health insurance (Florida v. U.S. Department of Health and Human Services, 2011). The court said: "Never before has Congress required that everyone buy a product from a private company (essentially for life) just for being alive and residing in the United States." The court added that under the government’s argument, "Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system."

The Florida court struck down the entire PPACA. The court noted that the government had emphasized that the individual mandate was "essential" for the reforms to work. The court said that if the statute "is viewed as a carefully-balanced and clockwork-like statutory arrangement" - with approximately 450 separate provisions - the court should not try to pick and choose which provisions are permissible and which are not. If the court’s ruling were upheld, Congress would be left to decide which provisions should be reenacted.

Although the Florida court declared the law to be unconstitutional, it stayed its ruling, pending outcome of the government’s appeal of its order. Another court struck down only the individual mandate and left the remainder of the statute intact (Virginia v. Sebelius, 2010).

Pending appeals

Appeals of the courts’ rulings, both upholding and striking down the Patient Protection and Affordable Care Act, are being expedited. The U.S. Supreme Court is likely to rule on the case in the first half of 2012.

If the Court applies traditional principles of Constitutional Law (which I believe it will), the PPACA will be upheld under the Commerce Clause since the manner in which people in the United States pay for health care has a substantial effect on the economy and interstate commerce. If political considerations override legal analysis, the constitutionality of the act would be more in doubt.

Jeff Atkinson (JAtkin747@aol.com) teaches health care law at DePaul University College of Law in Chicago. For more information about health care reform, see our Reform Recap department of PracticeLink Magazine.



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