Buy the health care law? Yes | Laurence Tribe

Congress can compel action due to public necessity

By Laurence Tribe
April 3, 2011

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THERE’S PLENTY to be said as a policy matter both for and against the Affordable Care Act, but it’s beyond reasonable debate that it complies fully with the Constitution. Few doubt that most of its provisions, including those requiring health insurers to cover people regardless of preexisting conditions or current illness, fall squarely within Congress’s power under the Commerce Clause. The one provision whose constitutionality is questioned is the individual mandate, the requirement that everyone who can afford to do so buy health insurance unless otherwise covered by an employer or by another federal program like Medicare.

That mandate, too, is constitutional. Congress found that the cost of providing uncompensated care to the uninsured totaled $43 billion in 2008, raising annual premiums for the average family by over $1,000. Suppose Congress had required anyone who received medical care at public expense in 2010 to purchase insurance for 2011 or face a modest increase ($750 per year) in federal income tax liability. Nobody could plausibly question such a law’s validity, whether as a direct exercise of Congress’s power to “regulate Commerce . . . among the several States,’’ or as a measure “necessary and proper for carrying [that power] into Execution,’’ or as an exercise of the “Power to lay and collect Taxes . . . for the . . . general Welfare of the United States.’’

Yet the only difference between that requirement and what Congress enacted is that it chose not to wait for someone to take a free ride on other taxpayers before imposing a preventive measure to guard against shifting the economic burden of one’s health care to others in this multitrillion-dollar interstate industry. Just as congressional power to arm the nation and create federal courts supports compulsory draft registration and mandatory jury service, so the power to regulate health insurance supports making participation compulsory to prevent opt-outs from undermining the whole system.

Challengers focus on how the increase in tax liability penalizes what they call “inaction’’ rather than “action.’’ That’s an illusion. Decisions to “wait and see’’ are actions that shift costs to others and risk the viability of insurance reform. Besides, nothing in the Constitution’s text, history, or Supreme Court precedent suggests anything improper about regulating commerce or imposing taxes to create incentives to act rather than incentives to refrain from acting.

As early as 1790, Congress penalized ship owners for failing to stock medications their crews might need. Some economic boycotts, which are obviously decisions not to purchase, have been banned by federal antitrust laws since 1890.

In 1942, the Supreme Court upheld a regulation supporting agricultural demand by “forcing some farmers into the market to buy wheat they could provide for themselves.’’ And in 1964 the Court invoked the Commerce Clause to uphold federal laws compelling hotels and restaurants to serve people they wanted to exclude. All those measures carried out Congress’s constitutional powers by affirmatively requiring people to act.

Those who objected to the federal civil rights laws did so on the supposed basis of states’ rights. So too, those who challenge the health care law invoke states’ rights to say the individual mandate cannot properly be imposed by federal, as opposed to state, law.

Many believe that at most a handful of states could realistically enact laws like this one. But in any event, the real objection to the penalty on refusing to purchase insurance isn’t the level of government that imposes it but the degree to which it supposedly invades personal liberty. Put simply, the challenge to the individual mandate confuses states’ rights with individual rights.

Greater protection for liberty may be an indirect byproduct of the way our system splits power between the nation and the states, but nothing in the Constitution suggests that the liberty of the individual is more generously protected from national legislation than from state or local measures.

If there were a basic right to remain uninsured, that right would thus be as fully protected from state as from federal law. But none of the challengers takes on the burden of defending any such right. And for good reason: The idea that such a right exists is fanciful.

There may be a right to refuse unwanted medical care, but there is no comparable right to insist that one’s medical care be paid for by others. Besides, this law doesn’t literally force anybody to do anything; it just increases the tax liability of those who refuse to buy insurance.

Even rights to refuse such intimate bodily invasions as compelled vaccination — or, to use a favorite example of the mandate’s opponents, a compelled diet of broccoli — have always been held to give way to a showing of public necessity, as when the Supreme Court upheld compulsory vaccinations. The showing of necessity here is more than ample, where the only “invasion’’ is an economic incentive to join the insurance pool.

Laurence Tribe is a university professor at Harvard. .

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