Is Obamacare Constitutional?

The constitutionality of the Patient Protection and Affordable Care Act (PPACT) (derogatorily called “Obamacare” by Republicans) is now before the U.S. Supreme Court. It is likely that the conservative justices will try to decide this case on the basis of politics rather than a strict adherence to the law. Justices like Scalia and Thomas would have the world believe that they are strict constructionists who follow only the law, but the truth is that they are highly political and they will decide this case on the basis of their political opposition to liberals and Democrats and in the hopes that their decision will hurt the chances of President Obama being reelected.

If Scalia and his political cronies were to decide this case solely on the law, they would be compelled to uphold the constitutionality of the law. In a long list of decisions, the Supreme Court has overwhelmingly upheld the broad power of the federal government to regulate commerce even if it meant regulating private activity which might have some affect on interstate commerce.

The chief question currently before the Supreme Court is whether Congress has the power under the Commerce Clause to mandate that people buy a minimum amount of health insurance under the PPACT. The Commerce Clause of the Constitution, U.S. Const. Art.1, Sec. 8, cl. 3, grants Congress power “to regulate commerce….among the several states.” In the case of Thomas More Law Center v. Obama, the Sixth Circuit Federal Court of Appeals upheld the constitutionality of the PPACT by recognizing that Supreme Court precedents give the federal government great power to legislate individual activity under the Commerce Clause.

The Sixth Circuit started-out by saying that “The minimum coverage provision, like all congressional enactments, is entitled to a ‘presumption of constitutionality.’" The court went on to say that “the presumption that the minimum coverage provision is valid is ‘not a mere polite gesture. It is deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an act is within their delegated power.’ ”

The Appeals Court then went on to find that under the Supreme Court decisions, enactment of the minimum coverage provision was definitely within the power of Congress. The Court noted that in several cases, including Gonzales v. Reich, the Supreme Court has held that Congress may regulate economic activity, even if wholly intrastate, if it substantially affects interstate commerce. For example, in Wickard v. Filburn, the Supreme Court upheld regulations limiting the amount of wheat a farmer could grow, even for non-commercial purposes.

The Sixth Circuit found that the minimum coverage provision is constitutional because Congress had a rational basis for believing that the provision has substantial effects on interstate commerce. The Court also found that Congress had a rational basis for believing that the provision was essential to its larger economic scheme of reforming the interstate markets of health care and health insurance.

The court recognized that 18% of the non-elderly population was uninsured and that most states required hospitals to treat people’s illness regardless of their ability to pay. Such uninsured people consume over $100 billion in health care services every year. Congress found that the cost of providing care to uninsured people was passed-on from providers to private insurers which pass it on to the families they insure. This raises the cost of health insurance and drives more people out of the private health insurance market. It becomes a vicious circle, and has a profound effect on the interstate commerce in healthcare and health insurance.

The Appeals Court held that the minimum care provision is an “essential part of a broader economic regulatory scheme.” Without the individual mandate, the PPACT would result in a terrible spiral: only relatively sick Americans would choose to get insurance, leading premium prices to rise and causing the healthier of even those sick people to drop their insurance, sending prices higher and higher.

Massachusetts, under Governor Mitt Romney, recognized that it could not successfully reform its healthcare system without enacting an individual mandate. The individual mandate has worked just fine in Massachusetts. It has actually lowered the cost of health insurance for consumers, and no court has held that it is beyond the power of the legislature.

It cannot be argued that the government cannot order people to purchase a private produce. They forget that most states require their citizens to purchase automobile insurance. It is considered an important part of the laws controlling the purchase and use of automobiles. Such legislative compulsion has never been struck-down by any court.

As one who practiced law for 37 years, and who took a special interest in Constitutional law, I can say with assurance that if there were no politics involved the upholding of the PPACT would be a slam dunk. I believe that those justices who question the constitutionality of the Act do so out of their political feelings and not out of any concern with the law. I hope that they will come to their senses and uphold this Act. But if they strike it down, I hope that the American People, in their righteous anger, will not only reelect President Obama, but also give strong control of both houses of Congress to liberal Democrats.