Fundamental Mismatch: The Improper Integration Of Individual Liberty Rights Into Commerce Clause Analysis Of The Patient Protection And Affordable Care Act

The Patient Protection and Affordable Care Act of 2010 (PPACA) was enacted on March 23, 2010. Since then, the constitutionality of the PPACA has been the subject of conflicting rulings in the courts, a source of major public criticism in the media, and debate among legal academics. Even though the PPACA faces challenges on a number of legal grounds, the one drawing the greatest amount of public attention centers on the requirement - popularly known as the “individual mandate” - that most Americans purchase health insurance. The individual mandate has been challenged on the ground that Congress’s power under Article I of the Constitution to regulate interstate commerce does not extend to requiring the purchase of health insurance. Given the immense political and practical significance of the PPACA, any Supreme Court resolution of this issue will almost certainly constitute a major event in the Court’s Commerce Clause jurisprudence. In particular, this note focuses on three distinctions that have played key roles in debates over the mandate’s constitutionality. The first distinction - and most important - is one between activity and inactivity. Critics of the PPACA assert that Congress does not have power under the Commerce Clause to regulate “inactivity,” and that the mandate represents a regulation of such inactivity. The second distinction is one between voluntary and involuntary participation in commerce. Critics of the individual mandate claim that Congress lacks the power to force people to enter the market and purchase a good or service. The third distinction turns on the alleged presence of unique circumstances. In contrast to the first two, both sides of the debate invoke this distinction. Critics of the PPACA argue that the mandate is an unprecedented, unique exercise of congressional powers - imposing a requirement “simply for being alive” - and takes this uniqueness to make the mandate questionable at root. Supporters of the PPACA claim that Congress determined that regulation of the health care market poses unique regulatory challenges, which the mandate can resolve only if the judiciary exercises restraint and does not second-guess Congress. None of these distinctions, this note will argue, holds up under close analysis. More important, their introduction as key distinctions in the analysis of Congress’s Commerce Clause power is unsupported by the text of the Constitution or existing case law. And most important, they represent an effort to import into the Commerce Clause a notion like the conception of individual liberty rights during the Lochner era. The Commerce Clause, however, is not about protecting individual liberty - at least not directly. Its central function is to maintain an appropriate balance between federal and state authority. Maintaining that balance may indirectly protect individual liberty by countering the potential tyranny of an overly centralized government. It may also, as Justice Kennedy claims, promote democracy by ensuring political accountability through demarcation of federal and state authority. Importing the protection of liberty rights directly into the Commerce Clause is another matter entirely, however. It would lead to a grave mismatch between the Commerce Clause and its functions. Suppose, for example, that the PPACA included a provision outlawing the sale of books critical of the new health care plan. Because there is a national market for the purchase and sale of books, its regulation would plainly fall within Congress’s Commerce Clause power. Holding otherwise out of a concern to protect individuals from federally imposed censorship would leave them unprotected from state-imposed censorship. The true constitutional barrier to any such requirement would lie in the First Amendment, which applies to states as well as the federal government. Similarly, if a mandate to buy and eat broccoli represents the kind of threat to individual liberty that a Florida District Court believed it to pose, the constitutionality of the mandate should not turn on whether it is the federal or the state government embracing the role of the “nanny state,” to use a term favored by libertarians. A mandate to buy goods or services would, in this view, be equally threatening if enacted by a state government - as Massachusetts did in the case of health insurance. Yet unless it is radically reinterpreted, the Commerce Clause would have nothing to say about a state mandate, for it limits the powers of Congress - not the states. In short, if there is any constitutional impediment to an individual mandate to buy health insurance, it arises from some substantive due process right not to do so. As this note will show, the case for such a right is far from clear. What is incontestable, however, is that analysis of that question is not aided by attempts to amalgamate it with the core federalism concerns of the Commerce Clause. Part II of this note explains key provisions of the PPACA and the legal challenges it faces. Part III analyzes the constitutionality of the PPACA under the Commerce Clause by discussing relevant Commerce Clause jurisprudence, emphasizing the importance of the current challenges to the PPACA, and then explaining why the new distinctions in the Commerce Clause challenges to the PPACA are improper. Part IV explains the misconceived new distinctions as exemplifying the liberty claim underlying the constitutional challenges to the PPACA. This note concludes that under well-settled Commerce Clause doctrine governing the balance between federal and state power, the federal power surely encompasses the regulation of a multi-billion dollar market in private health insurance. Thus, the individual mandate provisions of the PPACA should be upheld.