“Can you create commerce in order to regulate it?” Supreme Court Justice Anthony Kennedy asked this question of Solicitor General Donald Verrilli, the defender of the Patient Protection and Affordable Care Act, commonly known as Obamacare, during oral arguments on Tuesday. The hearings held this week lasted a total of six hours, the longest time spent in argument in front of the Supreme Court since 1966. Even Bush v. Gore, the case which saw the Court uphold the ballot count in the 2000 election, saw only 90 minutes of oral arguments. This bill was one of the signature pieces of legislation produced by the Obama administration, but one of its central tenets may prove untenable: the individual mandate.
The individual mandate, called both a penalty and a tax by supporters and enemies alike, requires every citizen of the United States to purchase health insurance or be penalized one percent of her income. This unprecedented measure raises the question of whether Congress can require a person to purchase a product, even if she does not wish to do so. The Constitution grants Congress the power to regulate interstate commerce, but the states challenging the case have posited that a decision to not purchase insurance does not constitute commerce and therefore cannot be federally regulated. However, the power to regulate interstate commerce has been broadly interpreted in the past, to the extent that some have claimed Congress has unlimited legislative power in that domain. For example, in the 1942 Wickard v. Filburn case, the amount of wheat that a person could grow and sell was regulated by the federal government, and Filburn had grown more than the amount allowed for personal use. Filburn didn’t sell the wheat, but the Supreme Court decided that his wheat harvest constituted interstate commerce because he would have no need to purchase extra wheat for his farming needs. The Affordable Care Act is another step toward the path of limitless government, and whether the bill or just the individual mandate is overturned is currently at the discretion of the Supreme Court.
While it is unlikely there will be a firm decision before June, the possibility that the individual mandate is stricken seems much more likely than it did before the hearings. When asked in 2009 where the Constitution authorizes the government to order Americans to buy health care, then-House Speaker Nancy Pelosi replied, “Are you serious?” Now, however, it seems obvious that the answer is not so simple. Justices, ranging from the traditionally conservative Scalia and Alito to Chief Justice Roberts to the moderate Kennedy, and even to Obama-appointee Sotomayor, have at various points expressed skepticism over the constitutionality of the individual mandate. Solicitor General Verrilli did little to help his case; left-leaning Mother Jones writer Adam Serwer claimed that Verrilli’s argument might become known as one of the worst defenses ever argued before the Supreme Court. While at times it can be difficult to tell how a Supreme Court Justice will vote, five Justices at various times asked questions concerning the constitutionality of the individual mandate. A sixth, Clarence Thomas, is generally considered to be among the least likely to vote on the side of the government in any given case. It is still very possible that the case will be upheld, as Justices Ginsburg, Breyer, Kagan, and Sotomayor are all expected to vote to uphold the Act, but the lines of questioning showed both Kennedy and Roberts seemingly leaning towards striking the mandate. This incredulous attitude toward the individual mandate is not only reasonable, but it is also right.
The individual mandate is a dangerous expansion of government power, as it would result in a much broader interpretation of Congress’s ability to regulate interstate commerce. One of the most prominent grievances more moderate members of the Court have with the mandate is grounded in the difference between regulating an affirmative action and regulating a passive action. Justice Kennedy has said that one does not have a duty to rescue someone if that person is in danger. However, with the mandate, the government is telling its citizens that each individual citizen must take such action; Kennedy believes that this “changes the relationship of the federal government to the individual in a very fundamental way.” Section 8, Article 1 gives Congress the power to make laws which are both “necessary and proper” in order to support the Constitution. It was the role of Solicitor General Verrilli to make the case, in his brief and oral argument, that such a change in the relationship between government and citizen is both necessary and proper, but his argument was unconvincing.
Throughout the arguments, many Justices pointedly asked Verrilli questions about the constitutionality of other conceivable forms of regulation. For example, Justice Scalia asked if the government can require gym membership or broccoli consumption in order to make for a healthier population. Verrilli often stumbled in his responses, but was repeatedly saved by Justices Breyer and Ginsburg in particular. Put simply, he needed saving because the health care law’s individual mandate is unconstitutional. It fundamentally changes the way that the federal government interacts with its citizens in a manner the Constitution has never been interpreted to allow.
America is a nation that was built with a unique Constitution, a living document that enumerated the powers of the United States government, but at the same time imposed limits on that power for the good of the people. While the “necessary and proper” and interstate commerce clauses have both been used to expand the powers of Congress time and time again, that does not make these expansions right. The more power that Congress has to exercise control over our lives, the less power we have to determine our actions. One beautiful fact about the United States is that the founders were scared of absolute power and sought to guarantee as much freedom for the citizenry as possible. This slow expansion of government power, at the expense of the individual, is a danger to American society and goes against the original intent of the Constitution. The justices of the Supreme Court have the power to determine the constitutionality of laws, or parts of laws, and if they hark back to the intent of the original Constitution the result will be an overturning of the individual mandate.
Eric Wessan is a second-year in the College majoring in political science.