The health care mandate

The following is an essay for our symposium by Professor Charles Fried.  Educated at Princeton, Oxford and Columbia Law School, Professor Fried is the Beneficial Professor of Law at Harvard Law School, where he has taught since 1961. He was Solicitor General of the United States, 1985-89, and an Associate Justice of the Supreme Judicial Court of Massachusetts, 1995-99. His scholarly and teaching interests have been moved by the connection between normative theory and the concrete institutions of public and private law. As a private lawyer he has argued appeals in many courts, including the Daubert case in the Supreme Court and the case deciding whether the attack on the Twin Towers was one occurrence or two.

 

The attack on the health care mandate in the Affordable Care Act (ACA) is pure politics.  In large part I think the political attack is quite justified. But the situation created by the decisions of two district courts and the drumbeat of arguments about the activity/inactivity distinction, capped by the hyperbolic claim  that if the government can make us buy health insurance then “we are no longer citizens; we are subjects,”  frightens me. The constitutional arguments against the mandate are utterly without merit. If they succeed – indeed, if they succeed in gaining more than one vote in the Supreme Court (Justice Thomas’s vote against the Act would accord quite well with his long held and often stated views on the reach of the Commerce Clause) – it would be a depressing triumph of naked partisan politics over established legal principles.

The energy behind the attack – to the extent that it is not simply the chosen symbol of an attack on President Obama’s supposed push to turn the United States into a Western European style social democratic state – lies in a supposed insult to our liberties. But that is pure hysteria.  The mandate is no more that than is the much more thoroughgoing governmentalization of medicine by Medicare.  Indeed, if accomplished as a tax the arguments would have no traction at all.  If enacted at the state level the impingement on liberty would be the same, but the attack would again fail. And then there is the irony that a single-payer or government option, which also would be beyond constitutional attack,  was rejected in favor of the mandate as a way to keep the whole scheme so far as possible within the private insurance market – a choice not made either in respect to Medicare or Social Security.

As to the “merits” of this specious attack, little more can be added to Judge Sutton’s devastating opinion, demonstrating among other things that the failure to buy insurance (on the private market) is hardly an instance of inactivity, but rather a choice to self-insure.  But I would add another argument, that for some reason the United States has been shy about making.  The activity/inactivity distinction, even if applicable, has no foundation in constitutional text, doctrine or precedent.  Chief Justice Marshall at the beginning of the Republic made clear that the commerce power is the power to regulate interstate commerce – not persons, but the commerce.  It is beyond doubt – -except in the consistent but radical jurisprudence of Justice Thomas – that health insurance is commerce. And even the egregiously political opinion of the district court in Florida made clear that the mandate is an essential part of the ACA.  Thus the mandate is a necessary part of a regulation of commerce, and that should be the end of it.  That this particular aspect of the regulatory scheme might captiously be described as a regulation of inaction is entirely irrelevant.  To put a cap on it, Justice Jackson’s opinion in Wickard in a mysteriously ignored passage states that “the stimulation of commerce” is also a regulation of commerce.

Finally, there is the “where are the limits” argument.  As Marshall also said, if the subject (n.b., not the person) is within the power of Congress that power is plenary, unless some specific constitutional limit is passed. But the attack has assiduously failed to invoke some such external limit (as for instance the liberty clauses). Where is the limit?  The limit is what it was in Lopez and Morrison: is the subject fairly to be seen as within interstate commerce?  This is; beating up your girlfriend is not. End of story.