The Magazine

Without Precedent

The Supreme Court weighs Obamacare.

Mar 26, 2012, Vol. 17, No. 27 • By ADAM J. WHITE
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Congress itself appreciated the distinction between the power to regulate commerce and the power to compel individuals to enter into commerce for the first 220 years of its existence. The federal code books are replete with provisions regulating the conduct of individuals who engage in commercial transactions, as well as provisions encouraging, enticing, and incentivizing individuals to enter into commercial transactions of all stripes.

Neither the federal government nor the numerous lower courts, the states conclude, “have identified a single other federal law throughout our Nation’s entire history that simply compels individuals to enter into commerce.” That dearth of precedents is all the more instructive, they argue, because “Congress surely has not lacked incentives to exercise such a ‘highly attractive power.’ ” In two centuries, Congress never lacked the creativity to fashion indirect ways to achieve its preferred ends​—​think of the perennial threat to withhold highway funds as a way to cajole the states into forcing drivers to wear seatbelts​—​but it never claimed for itself the power to achieve its economic aims through direct commands to the citizenry at large.

The government’s brief responds first by broadening the “commerce” at issue from the “health insurance” market, in which some persons might not voluntarily participate at any given time, to the greater “health care” market, in which practically everyone participates. If the “market” at issue is health care generally, then the challengers’ activity-inactivity distinction evaporates, so long as everyone purchases health care services.

Having broadened the Court’s frame of reference, the government further argues that the individual mandate is unique because the health care market is unique. Contrasting that market with the markets for cars or food​—​perhaps a nod to Republicans’ suggestion that a mandate to buy health coverage is no different from a mandate to eat broccoli or buy GM vehicles​—​the government asserts that health care “involves needs that cannot reasonably be antici-pated and budgeted for”; when “a heart attack or appendicitis strikes, a person cannot postpone a hospital visit in order to save enough money for it.” Health care costs are “largely unknowable,” and they can escalate rapidly. In the face of such uncertainty, the government concludes, the individual mandate “reasonably regulates the financing of participation in the health care market and is a reasonable means to prevent the shifting of costs and risks to other market participants.”

And even if the individual mandate does not fit squarely within the Commerce Clause, the government further argues, that mandate fits within the powers granted by the Necessary and Proper Clause​—​that is, the Constitution’s ancillary provision authorizing Congress to “make all Laws which shall be necessary and proper for carrying into Execution” Congress’s other enumerated powers. Largely quoting United States v. Comstock, a 2010 case in which the Supreme Court relied upon the Necessary and Proper Clause to affirm a federal statute requiring the noncriminal detention of sex offenders, the government argues that the individual mandate is sufficiently “convenient,” “useful,” or “conducive” to the government’s regulation of the broader health care market to pass constitutional muster.

The Comstock decision was a significant one, if only because in that case Chief Justice Roberts signed on to the Court’s opinion, and Justices Kennedy and Alito each penned a separate opinion sharing the ultimate conclusion that the detention statute satisfied the Necessary and Proper Clause; the individual mandate’s challengers will need each of those justices’ votes in the Obama-care case. The states challenging Obamacare respond with several arguments that the mandate is neither “necessary” nor “proper.” Ultimately the most powerful of these is the slippery slope: The government’s argument offers no legal limits to prevent the imposition of similar mandates in other markets displaying similar characteristics. Lacking any “limiting principle,” the government’s theory of the power to mandate the purchase of health insurance “obliterates any meaningful boundaries on Congress’ limited and enumerated powers,” a theory that “cannot be squared with the Constitution.”

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