Constitutional Challenges Part 2: Health Reform and the Commerce Clause
There is no doubt that the federal government may regulate health insurance under its authority to regulate interstate commerce. And it can regulate not only the interstate aspects of the insurance markets—not only the transactions that cross state lines—but it can also regulate any activities which substantially affect interstate commerce.
Indeed, as the following passage from Justice Scalia’s concurrence in Gonzales v. Raich (2005) suggests, the regulation of commerce may even reach non-economic activity, if doing so would be integral to a comprehensive scheme of regulation of interstate commercial activity:
The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power.
Igor Volsky cites this passage as evidence that the Affordable Care Act (ACA) is unlikely to be overturned in court, which is true, though not necessarily because of the broad scope of the commerce power. As broad as that power is, it has limits. The arch of major commerce clause caselaw and scholarship has largely been about what counts as economic activity, or what counts as affecting interstate economic activity. But the individual mandate raises an even more basic question: what counts as “activity”?
It seems to me plausible that the Court would say something like this: In order for individuals to be brought within the sphere of federal regulatory authority, those individuals must have taken some relevant, positive action—they must do something—that triggers the application of the regulations to them. Something more than just breathing or walking. Something that requires affirmatively choosing to participate in some aspect of the activity reached by a comprehensive regulatory scheme.
Scalia distinguishes Morrison and Lopez (two major cases from the 1990s which struck down federal statutes as exceeding their authority under the commerce clause) from Raich (which upheld federal regulation of purely intrastate activity) by noting that the laws concerned in Morrison and Lopez were not integral to a comprehensive scheme of regulation. Now, the ACA does not do everything possible to fix our healthcare system, but no one could seriously deny that it takes a comprehensive approach to health-insurance regulation. So it would seem that even Justice Scalia should agree to uphold the individual mandate as an integral policy component that is necessary and proper to a comprehensive scheme of health-insurance regulation under the commerce clause. But an account that turns on the distinction between an activity and the absence of that activity is just the kind of thing Scalia would go for. With relish.
The upshot of a ruling like this would be to require that the individual mandate penalty be triggered by some affirmative activity of the individual, and not merely the individual’s uninsured status. The reasoning would be something like this: The decision to abstain from insurance is not an activity that substantially affects commerce. It is not an activity at all. It does substantially affect commerce, but it is not an activity.
Perhaps an activity requirement could be satisfied by something as simple as receiving medical treatment. Go to the doctor, and you’re subject to the mandate. Or maybe it wouldn’t be so simple. People often do not “choose” out of free volition to get medical care. If free choice is a component of the triggering activity, it might be harder to impose a blanket mandate under the authority of the commerce power.
But that last bit is the key. This limitation would only apply to regulations enacted under the commerce clause. The whole discussion is moot, as I mentioned in the first post, because the individual mandate has a much firmer basis in Congress’s power to tax and spend to promote the general welfare. I’ll do another follow-up on that another time.
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Under what power is EMTALA enacted? I have no desire to go to an emergency room, and will not do it purposefully, but when I get hit by a car and get taken to the ER I’m glad to know that a federal law requires the ER to treat me even if I lost my insurance card.
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