More on PPACA's Constitutionality: When Can Commercial Inactivity Be Defined as Activity?
The lawyers, Wendy Mariner, George Annas, and Leonard Glantz, describe (unlike Yale's Jack Balkin), the "continuing uncertainty over the constitutionality" of PPACA on the basis of "conflicting trial court rulings and scholarly commentaries." They cite 4 reasons for why the "constitutional question," as they call it, is so damned thorny.
1. Congress has never required anyone to buy a product from private industry. What isn't in doubt, Mariner et al acknowledge, is Congress's power over the health-insurance industry under the Commerce Clause. What is unclear, however, is whether Congress can demand that uninsured Americans buy health insurance (so that the insurance risk is spread and that costs remain manageable, as a result).
2. The answer to reason no. 1 depends on how the Supreme Court (or other federal courts, for that matter) will interpret the scope of the Commerce Clause. To confuse predictions, the high court has lately provided both conservative and liberal readings of the Clause, which "makes it almost impossible to predict how it will view the requirements of [PPACA]."
3. The thorniest issue, the lawyers propose, is whether inactivity (ie, not buying health insurance) actually "qualifies as an activity that affects interstate commerce." If the Commerce Clause allows Congress to penalize (or tax?!) Americans for inactivity (really activity), the Obama administration will have to demonstrate why this reasoning doesn't allow Congress wider authority (via the Commerce Clause). For instance, the Justice Department will have to show why Congress couldn't penalize Americans for not buying a car to sustain a failing automotive industry. Now the argumentative distinction may lie in the necessity of the purchase, the authors counter. The DoJ might rebut to the Supremes: People require health coverage but not necessarily a car.
4. But this pro-mandate rebuttal might be difficult. There are other necessary or simply good-for-you commodities—like water, food, broccoli—but Congress doesn't legislate their purchase or the purchase of insurance to pay for them (when Americans can't afford them).
Mariner et al provide no pat answers (unlike Jack Balkin), but their closing thought is an intriguing one: The Constitutionality of the insurance mandate is an issue that is distinctive to PPACA. It would not be raised (and is not raised) in the cases of Medicare, Medicaid, and Veterans Affairs medical services, because these are government healthcare programs supported by Congressionally imposed taxes. If PPACA had provided a national healthcare program (eg, had expanded Medicare to everyone) instead of accommodating a private healthcare insurance industry, there would be no Constitutional argument.
