Running Head: Constitutionality of Individual Mandate

Constitutionality of The Individual Mandate Provision Of The Patient Protection and Affordable Care Act

Ian Koll Dr. J. Maltese University of Georgia April 2012

Constitutionality of Individual Mandate

Constitutionality of The Individual Mandate Provision Of The Patient Protection and Affordable Care Act In recent weeks, there has been an increase in political quarrelling as the Supreme Court debates the constitutionality of President Barack Obamas proposed health care reform. The reform, which is officially referred to as the Patient Protection and Affordable Care Act, or more informally Obamacare, has been both praised and contested since being signed into law on March 23, 2010.i The majority of the debate lies within a provision in the reform that requires most American citizens to purchase health insurance by 2014. This provision, known as the individual mandate, has undergone scrutiny on the grounds that it may violate the constitution by requiring citizens to purchase health insurance, regardless of their desire or need. According to a brief released by National Federation of Independent Business (2012), the individual mandate provides that An applicable shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month (p. 26), where minimum essential coverage refers to the purchase of a government approved form of health insurance.ii Many states have already debated the constitutionality of the proposed individual mandate, and Florida has already filed suit against the United States Department of Health and Human Services in an effort to nullify the act.iii So far, 26 States have joined Florida in filing suit in lower court divisions.iv I, for one, believe the individual mandate is a flagrant violation of the constitution, and would argue against the incorporation of an individual mandate requiring American citizens to purchase health insurance in Obamas proposed health reform.

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There are several justifiable arguments that one could make in opposition to the constitutionality of the individual mandate. One such argument is that, if Congress were to require Americans to purchase health insurance, where would the line be drawn? The individual mandate, which was allegedly drafted into the plan with an effort to lessen the financial burden of the uninsured on both the government and taxpayers alike, would require that all those not covered by a company insurance policy or government sanctioned form of health care to purchase a plan on their own. In addition to this proposed individual mandate, there has only ever been one other individual mandate in our nations history- which was brought forth by the Militia Act of 1792, and required all able bodied white men to have access to a battle ready firearm.v This law was never federally enforced, and was drafted in a time where the American political system was still in its fledgling years. To impose such a radical requirement in todays society, where an overwhelming number of Americans face financial difficulty, would be preposterous. Congress claims that it can derive the power to impose this mandate through one of its many enumerated powers, the Commerce Clause of the Constitution. This clause allows Congress the authority to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.vi The words to regulate Commerceamong the several States have been used to justify several previous cases in which the legality of interstate commerce has come into question; the most relevant of which being the 1942 case Wickard v. Filburn, where the Supreme Court found Roscoe Filburn, a farmer, guilty of disobeying a limit that had been placed on the amount of wheat farmers could grow. Even though he produced the wheat for his own personal use, and had no intention of selling it, the Supreme Courts decision was based on an interpretation of the Commerce Clause that saw Filburns excessive wheat production as wheat

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that he would not purchase to feed his livestock, which thereby impacted interstate commerce.vii Supporters of the individual mandate believe that this previous decision gives the proverbial green light to pass the individual mandate provision.viii The District Court for the District of Columbia upheld the individual mandate in the case Sevensky v. Holder (2012), stating, The Government counters [the Appellants claims] that the individual mandate is well within the bounds of congressional power. Congress can regulate even purely local, intrastate economic

behavior so long as, in the aggregate, it substantially affects interstate commerce.ix (p. 25). But a limit on agricultural production and a requirement for American citizens to purchase health insurance are two completely separate issues, and the concept of economic behavior does not expressly address the implications of choosing to opt out of health insurance. There are many Americans in good health who choose to live without health insurance, because they feel as though they would not take full advantage of it due to the unlikelihood of getting sick. To outright require Americans to purchase a commodity such as health insurance, without any consideration for their basis of need, completely oversteps the scope of the Commerce Clause. Prior rulings that cited the Commerce Clause all carried a unifying theme; they were all related to some form of economic activity, such as trading goods or running a business. An Americans decision to opt in or out of health insurance is one that should be entirely their own- and does not, in my opinion, have any connection to the Commerce Clause, as the decision not to purchase health insurance should not be considered economic behavior, and therefore does not expressly constitute interstate commerce. A brief written by the National Federation of Independent Business (2012) argued, Since most health insurance is sold by national or regional health insurance companies, health insurance is sold in interstate commerce and claims payments flow through interstate commerce.x There is no doubt that a nation-wide insurance company is

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affected by interstate commerce, and conducts business over state lines. That said, the issue here does not rest with the companies themselves, but with Congress attempting to gain the authority to mandate Americans to purchase health insurance from the Commerce Clause, which simply cannot be done whilst maintaining constitutionality. The 11th Circuit Court of Appeals in the case Florida v. Department of Health and Human Services (2012), who examined the proposed law noted that [t]o the extent the uninsured can be said to be active, their activity consists of the absence of [economic activity], at least with respect to health insurance (p. 111). Simply put, the individual mandate cannot be neatly classified under either the economic activity or noneconomic activity headings.xi The court later concluded: The individual mandate exceeds Congresss enumerated commerce power and is unconstitutional. This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them repurchase that insurance product every month for their entire lives. (p.166)xii The opinion of the court accurately assesses the unjust implications that the individual mandate would impose on the American public. Furthermore, as stated by the Congressional Budget Office in 1994, The government has never required people to buy any good or service as a condition of lawful residence in the United States.xiii If the individual mandate were to pass, the ramifications of Congress drawing such unprecedented power from a clause whose scope is frequently and fervently debated could be momentous. With an individual mandate, the original intention of the Commerce Clause would be forever changed. This would be followed by a seemingly endless amount of legislation,

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where any policymaker with a vested economic interest could argue their case on the presumption that the legislation loosely incorporates the notion of interstate commerce. This would reduce the Commerce Clause to the likes of a blank check, where outrageous laws could be drafted with very little debate. The argument has been made beforexiv, but it bears repeating: could Congress not require all American citizens to buy a particular brand of bath soap? Could a law be passed that required Americans to purchase automobiles from a car company that receives government subsidies? Perhaps a law that required all American citizens to purchase a German Shepard? While these examples are ridiculous, a particularly broad interpretation of the Commerce Clause could indeed make such claims, as there is little difference between the aforesaid examples and the implications of the individual mandate. If the individual mandate provision is not expunged from the health reform proposal, such unscrupulous laws could become all the more relevant- with the theoretically limitless power of the Commerce Clause setting the precedent. Senior Fellow at the Cato Institute Ilya Shapiro (2012) notes that upholding the mandate would fundamentally alter the relationship of the federal government to the states and the people; nobody would ever again be able to claim plausibly that the Constitution limits federal power (p. 13).xv The individual mandate could indeed be the first step in a long chain of legislative decisions that lead to a federal government with nearly limitless power. Another point worth mentioning is the fact that in no time since the founding of our nation has the government ever expressly required citizens to participate in the market if they do not so chose. Excluding taxes, which are seen as a necessary and proper measure associated with being a citizen of the United States, the individual mandate would forcibly require citizens to opt in to a service they may have otherwise chosen to live without. Furthermore, it would be an

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unheard of exercise of Congressional power to require citizens to purchase health care from a private insurance company. If an individual does not want to purchase health insurance, then he should be able to make that choice based on his rational need for health insurance- a wide interpretation of the Commerce Clause does not immediately justify the individual mandate by any means. It is by no means a free ticket for the government to force its citizens to engage in economic activity without their express consent. As the individual mandate stands at present, Americans without employer-provided health insurance would be forced into a non-negotiable contractual obligation to pay for a private health insurance plan, or suffer the penalty of the shared responsibility payment penalty. The American publics lack of freedom to choose, coupled with their inability to decline from participating in the insurance market is a striking example of the misuse of Congressional power the individual mandate attempts to utilize, and is inherently unconstitutional. One final element that is void from the individual mandate is the concept of mutual assent. As stated by the Columbia Law Review (1903), The fundamental and distinguishing characteristic of the contractual obligation is that it is based upon the consent of the contracting partiesor an obligation which the parties intend and wish to have result from their actions.xvi When two parties make a contract, mutual assent is a necessary component for the contract to be legally binding. Due to the nature of the individual mandate, there would be no assurance of mutual assent between the government and its citizens. Mutual assent is defined as agreement by [two] parties to a contract usually in the form of offer and acceptance.xvii The implications of the individual mandate would completely disregard this critical aspect of contract law, and, in effect, force Americans to enter a contract that they may not fully accept or understand. When examined fully, the individual mandate is an exemplary form of undue influence, and would

Constitutionality of Individual Mandate therefore be an unconstitutional exertion of Congressional powers, because the contract was not established with both parties in a mutual agreement with one another. On the contrary, it would be a flagrant abuse of Congresses powers to enact such a contract without regarding the wishes of the citizens that are subjected to the individual mandate. In summation, we find that (1) Congress does not have the authority to impose an individual mandate requiring American citizens that are not already insured to purchase health insurance from private companies, (2) the individual mandate is unconstitutional in that it relies on an interpretation of the Commerce Clause that oversteps the limits of congressional power, and (3) due to the lack of mutual assent, the individual mandate would be an improper and

unconstitutional provision of the health reform. It is for these reasons that we find the individual mandate provision of the Patient Protection and Affordable Care Act to be an abuse of congressional authority and move to have it expunged from the proposed health reform. The Oyez Project at IIT Chicago-Kent College of Law, (n.d.). The affordable care act cases. Retrieved from http://www.oyez.org/cases/2010-2019/2011/2011_11_400 ii Brief for Private Petitioners: National Federation of Independent Business v. Sebelius iii State of Florida et al. v. U.S. Department of Health and Human Services iv Olsen, D. (2011). State of Florida et al. v. U.S. Department of Health and Human Services. American Lawyer, 30. v Militia Act of 1792, 2nd Cong., 1st Sess. (1792). vi US Const. Art. 1, sec. 8. vii The Oyez Project at IIT Chicago-Kent College of Law, (n.d.). Wickard v. filburn. Retrieved from http://www.oyez.org/cases/1940-1949/1942/1942_59 viii Liptak, A. (2012, March 19). At heart of health law clash, a 1942 case of a farmers wheat. The New York Times. Retrieved from http://www.nytimes.com/2012/03/20/us/politics/atcenter-of-health-care-fight-roscoe-filburns-1942-commerce-case.html?_r=2&ref=todayspaper ix District of Columbia Court of Appeals: Sevensky v. Holder x Brief for Private Petitioners: National Federation of Independent Business v. Sebelius xi State of Florida et al. v. U.S. Department of Health and Human Services xii State of Florida et al. v. U.S. Department of Health and Human Services xiii Seiler, R. Congressional Budget Office, (1994). The budgetary treatment of an individual mandate to buy health insurance. Washington, DC: xiv Jon, K. (n.d). Obamacare and the "Broccoli Mandate". FDCH Press Releases,
i

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xv

Shapiro, I. (2012). Obamacare will lose a close fight. In Preview of United States Supreme Court Cases: Health Care and the High Court (pp. 11-14 inclusive). American Bar Association. xvi Ashley, C. D. (1903). Mutual Assent in Contract. Columbia Law Review, 3(2), 71-78. Retrieved from http://www.jstor.org/stable/1109650?seq=1 xvii USLegal, (n.d.). Assent law & legal definition. Retrieved from http://definitions.uslegal.com/a/assent/