As stated in my last post a federal judge in Virginia has declared the individual mandate of the Affordable Care Act to be unconstitutional. This was based on the principle that the federal government lacks that power to force people to purchase insurance. As I also stated in the last post this was based on principles of federalism. Many have found this to be great victory for liberty. In reality it’s not, but that was my last post. In this post I want to explain why the judge got it right and why the judge is ultimately going to be wrong.
Article I of the Constitution grants to Congress and by extension the federal government certain powers. The states wanted to keep all of their other powers. These powers are listed in Section 8 of that article. The Constitution was an expansion of powers for a federal government that had been ineffective as a confederation. The clause at issue gives the federal government the power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” It seems fairly straight forward that health care and the health insurance industries are commerce “among the several states.” Congress certainly has the ability to regulate such activity. The question is whether the individual mandate is a proper exercise of that power.
This is where the words of the Constitution do not comport with the interpretations of it by the Supreme Court over the years and where we need to look beyond just the commerce clause itself. The Supreme Court has held that the federal government has the ability to regulate the amount of wheat that you can grow for your own consumption and marijuana also used for your own consumption. These things aren’t even being bought or sold, but the government can regulate these items because it impacts the demand for things that are bought and sold. In recent years the Supreme Court has found that the federal government can’t regulate the possession of guns near schools or violence against women.
Is the mandate a “regulation” of commerce? Clearly not. It is a requirement. It is more akin to a tax. This is why the judge in Virginia is right. The mandate is not a regulation. However, this ignores the fact that there is another clause that makes the mandate constitutional. It’s section 8.18, the necessary and proper clause. We have already decided that congress has the power to regulate the health care industry and health insurance industry. If the mandate isn’t a direct regulation on that industry, it is still may be necessary and proper to have in order to regulate the interstate commerce. This is why the judge is wrong. There is no indication that he felt that law was not necessary and proper to the valid exercise of the commerce clause power. That is the decision that actually needs to be made.
Let us be honest though. That decision will be made by the Supreme Court. Anything that happens between now and the time that Justice Scalia either writes a scathing critique of Congress usurping state power and overturns the law or writes a scathing critique of Congress usurping state power and vigorously dissents is meaningless. The Constitution means what the Supreme Court says it does. Of course then again we can debate the constitutionality of Marbury v. Madison.