The Supreme Court is now considering the constitutionality of the Patient Protection and Affordable Care Act, landmark legislation that seeks to guarantee comprehensive and affordable health care for all Americans.
Critics of the law focus primarily on the minimum coverage requirement, or what they call the “individual mandate.” This provision, which requires most people to purchase insurance or pay a penalty for failing to do so, helps all Americans by ensuring that coverage is available regardless of pre-existing conditions and by making the cost of health care and insurance premiums affordable.
We hear very little in this debate about the interests of the millions of Americans who will benefit from the Affordable Care Act. Instead, we hear that the Affordable Care Act is an attempt by Congress to regulate “inactivity” by requiring some people to enter into a commercial market when they do not wish to do so. But regardless of whether one chooses to purchase insurance, everyone is an active participant in the health care market. After all, no one can credibly claim that he or she will not get ill or injured and need care. The notion that by simply failing to purchase insurance now, one becomes “inactive” in the health care market is utter fiction.
It is an unfortunate fact that the majority of uninsured Americans — more than 90 percent of the long-term uninsured — are unable to cover the costs of their health care. As a result, other Americans shoulder those costs through taxes and increased fees for health care and insurance premiums. That Congress provided a clear incentive for all of us to carry our share of the health care costs we inevitably incur is neither overly intrusive of personal liberty nor beyond our legislative authority.
Critics of the law dwell on hypothetical after hypothetical — claiming that, unless the Affordable Care Act is declared unconstitutional, the government will be able to force people to eat leafy greens or to exercise — but they decidedly avoid talking about what is truly at issue here: the simple requirement that each of us take personal responsibility to ensure that we can cover our health care needs.
Maybe those who would rather not make those arrangements by purchasing insurance now believe they have enough money to pay out-of-pocket as their need for health care arises. Maybe they plan on purchasing insurance later or shifting the cost of their care to others. But, they do not have a constitutionally protected right to do so.
Given the dire proclamations about the effect of the minimum coverage requirement, one would certainly think that it violates a constitutionally protected liberty interest. But not a single judge in any of the cases challenging the constitutionality of the minimum coverage requirement has ruled that this is so. The reason is simple. The view — held for a brief period of time dating from the Supreme Court’s 1905 decision in Lochner v. New York to the mid-1930s — that the Constitution protects individual economic liberties or rights against government laws that require, or prohibit, action has long since been discarded.
Indeed, states currently require citizens to purchase other types of insurance. Congress, through the Medicare program, requires citizens to pay for health coverage they will receive after age 65. These laws violate no discernible individual liberty interest. Nor does the Affordable Care Act.
Article 1, Section 8, Clause 3 of the Constitution grants Congress authority to regulate interstate commerce and clearly allows Congress to regulate the vast interstate health care and health insurance markets. Article 1, Section 8, Clause 18 grants Congress discretion to choose the “necessary and proper” means of achieving its regulatory goals and makes clear that it is Congress’ responsibility and right to determine how best to achieve its legitimate legislative ends.
Our “end” here — achieving affordable and available health care for all by, among other things, eliminating cost shifting from those who are uninsured and through additional regulation of the vast interstate health care and insurance markets — is unquestionably legitimate. The minimum coverage requirement is appropriate and is not prohibited by the Constitution. This law is fully constitutional, and I eagerly await the court’s ruling with the hope that we can soon put this highly partisan legal challenge to rest.
Rep. Jerrold Nadler (N.Y.) is the No. 3 Democrat on the Judiciary Committee and ranking member of the Subcommittee on the Constitution.
Sen. Jeff Flake, R-Ariz., takes a selfie with his cut-out head during the Hoops for Youth 16th annual charity basketball game held at George Washington University's Smith Center, September 8, 2014. The members of Congress team beat the lobbyist team 46-40. Buy photo here.