The Nascent Requiem — Part I

This is the first installment of this article. Also see Part II, and Part III.

“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”


From May 26-28, the Supreme Court heard oral arguments on the Affordable Care Act (ACA), more commonly known as Obamacare. But since we here, writers and readers alike, are among the educated upper-crust, we will avoid grammatical atrocities such as “Obamacare” and will rather maintain our hold on traditionalized systems of acronyms and the like. It is true, however, that politics is one of the greatest sources of fiction — and this does not exclude the creation of words. Indeed, mankind has yet to find a more effective medium through which creativity can flow than under the circumstances engendered by politics. In fact, there are many other areas (other than words) that politics has managed to oscillate its besmeared hand appendages into, such as philosophy, science, law, education, and . . . politics? (You may find it redundant, but it is undeniably true that politics has a habit of ruining itself.)

Unfortunately, fiction is so convolved with politics that when we test politics with reality we often finish with confusion. But it must be done. For there is no better way to hold politics accountable. How would it be done otherwise? Testing fiction with fiction will only produce fiction, but testing fiction with reality at least gives sensibility a fighting chance.

Sensibility was given such a fighting chance — indeed, a historical chance — against fiction and fabrication in the Supreme Court last month. Three days of oral argument were conducted as follows:

Day One (May 26)

  • Issue: the Anti Injunction Act (AIA). This law prohibits an individual from bringing charges to court over a tax if the individual had not yet paid the tax. Thus, the question before the Supreme Court became whether or not the penalty imposed on individuals through the ACA (to those who did not buy insurance) was a tax. If it was held to be such a tax, the prosecutors would have to wait until the ACA takes affect (2015).

Day Two (May 27)

  • Issue: the individual mandate. This part of the argument was more to the heart of the questions before the court; that is, whether or not the Commerce Clause permits the government to compel an individual to purchase health insurance.

Day Three (May 28)

  • First issue: severability. This concerned whether or not, if the mandate is held unconstitutional, the rest of the law would be allowed to stand, a few other parts of the law go with the mandate, or the entire law would be held unconstitutional because of the mandate.
  • Second issue: the Medicaid requirement. That is, whether the penalties imposed on states if they refuse to add millions to their Medicaid rolls (as required by the ACA) is mere “encouragement” or amounts to “coercion.”

For more information on the case as a whole Oyez has created an comprehensive summary of the issues, opinions, advocates, briefs, and justices that can be accessed here.

The Court has yet to make a determination on any of the issues, but many remain hopeful as several of the Justices demonstrated some hostility to the law. The government in this case claims that it has the Constitutional (enumerated) power to pass the individual mandate under the Commerce Clause. (The individual mandate is the part of the ACA which require all individuals, with a few exceptions, to purchase health insurance.) This paradisaical Clause is found in Article I Section 8 of the U.S. Constitution and states the following:

The Congress shall have Power To . . . regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. . .

The government argues that it can compel individuals to buy health insurance because their failure to do so would have a substantial effect on interstate commerce — thereby rendering it under their power to regulate. As far as the case law is concerned, the standard that would most readily be applied is the one from United States v. Lopez (1995). This case established three categories of economic activity that fell within the bounds of Congressional power: 1) The channels of interstate commerce; 2) The instrumentalities, persons, or things in interstate commerce (even if the threat is intrastate); and 3) those activities which substantially effect (or relate to) interstate commerce.

In many situations, laws restrict individuals from acting — that is, make things illegal. However, in the case of the ACA, it involves the compulsion to act. One does not act when one does not buy insurance. Yet the ACA imposes penalties on individuals who do not do what the law says. Thus, for this reason, the law cannot be defended based on the first two categories established in Lopez (insurance is not in the channels of commerce when it is not bought, and a person is not in interstate commerce when he does not buy). In effect, the only legal option left to defend the law lies in the third category — activities which substantially effect or relate to interstate commerce.

But here we run into a vocabulary problem. Lopez allowed the federal government to regulate “those activities” which substantially effect interstate commerce. In this case, we are not dealing with an activity, but inactivity. The response of the government to this observation has been that the differentiation between activity and inactivity is unfounded. Indeed, they argue that activity in the health care market is inevitable and involuntary. This is because individuals who do not buy health insurance are bound to become ill at some point in their life and in need of a hospital. But, without insurance, they cannot pay for the economic goods they are consuming. As a result, these costs are laid upon the hospital, who (when the costs imposed are taken in their totality) must raise their rates — making it more expensive for those who can pay; namely, people with insurance. And this ultimately raises the prices on insurance, which is an interstate market. They argue that these circumstances are unique to the health care market and, as a result, warrant federal power.

This argument misses the point. The law does not compel people to pay for their health care, it compels them to buy insurance. They may be active at some point in the health care market, but not necessarily in the insurance market. All of the “unique circumstances” that vitally underpin the majority of the government’s argument fatally rest in the wrong market.

However, it is true that the insurance market is inescapably linked to the market of health care (at least, health care insurance is inescapably linked to the market of health care). Even if we ignored the distinction between the markets, there is still no grounds for the law under current case law. Indeed, the issue before the Court does not involve something that is interstate commerce, but rather, something which isn’t even commerce. It would seem painfully straightforward to deduce that one cannot claim to have the power to regulate something under the Commerce Clause which is not even commerce in the first place.


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