Supreme Court Cliff Notes on the Roberts HealthCare Decision

Given its expansive scope, it is no surprise that Congress has employed the commerce power in a wide variety of ways to address the pressing needs of the time. But Congress has never attempted to rely on that power to compel individuals not engaged in commerce to purchase an unwanted product. Legislative novelty is not necessarily fatal; there is a first time for everything. But sometimes “the most telling indication of [a] severe constitutional problem . . . is the lack of historical precedent” for Congress’s action. At the  very least, we should “pause to consider the implications of the Government’s arguments” when confronted with such new conceptions of federal power. Lopez, supra, at 564.

To consider a different example in the health care market, many Americans do not eat a balanced diet. That group makes up a larger percentage of the total population than those without health insurance. The failure of that group to have a healthy diet increases health care costs, to a greater extent than the failure of the uninsured to purchase insurance. Under the Government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables.

To an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce. The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress’s actions have reflected this understanding. There is no reason to depart from that understanding now.

An individual who bought a car two years ago and may buy another in the future is not “active in the car market” in any pertinent sense.

[This is where I disagree. In the past I owned a car and have no desire to own another one, just as I would prefer not to be a customer of the healthcare industry. But circumstances beyond my culture will compel me to purchase health services whether I want them or not. (Our mortality is the culprit here, not the government; most Americans vote as if they were immortal and borrow as if they are not)]

The Government argues that because “[e]veryone subject to this regulation is in or will be in the health care market,” they can be “regulated in advance.”

Ahh, thanks Government for being realistic.

Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes.

The question is not whether that is the most natural interpretation of the mandate, but only whether it is a
“fairly possible” one.  As we have explained, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read, for the reasons set forth below:

  • It does not apply to individuals who do not pay federal income taxes
  • A tax on going without health insurance is not a direct tax, or capitation. Capitations are taxes paid by every person, “without regard to property, profession, or any other circumstance.” The whole point of the shared responsibility payment is that it is triggered by specific circumstances [poor people pay less than rich people, and everybody is pays a lower penalty than the cost of buying insurance, so the benefit to buying outweighs the benefit of not buying it.]
  • The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity. But from its creation, the Constitution has made no such promise with respect to taxes.
  • Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. … By contrast, Congress’s authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more.
  • The individual has a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice. The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.
Interesting notes:
  • HealthCare Mandate will upheld in part due to child labor violators at Drexel Furniture company 90 years ago.
  • Because the IRS collects the penalty payment and not the Department of Health, it is okay.
  • Roberts draws the line on when penalties for poor life choices are too much: “We have nonetheless maintained that “‘there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment.’” [So watch out, New York City Big Gulp fines!]
  • The full 193 page document is here: http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf

The only long-term solution is a health cure industry to make the for-profit health care industry obsolete.

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