Affordable Care Act Opinion

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Opinion of the Court Supreme Court of the United States Obama v. Thomas More Law Center
By Nick Troiano Justice Scalia delivered the opinion of the Court. In this case, we consider the constitutionality of the Patient Protection and Affordable Care Act and whether its Minimal Essential Coverage Provision, which levies a financial penalty on individuals who do not purchase health insurance (with few exceptions), is a constitutionally permissible regulation. Specifically, we consider whether the provision exceeds Congress’ power to regulate commerce under the Commerce Clause or Congress’ power to enforce a federal law in light of the Virginia Health Freedom Act, which implicates the 10th Amendment. Commerce Clause Case Law The Commerce Clause of the United States Constitution delegates to Congress the power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const. Art. I. §8, cl. 3. While the federal government possesses limited and enumerated powers, we acknowledge questions regarding “the extent of the powers actually granted, is perpetually arising.” McCulloch v. Maryland, 17 U.S. at 405 (1819). This is especially true of the Commerce Clause, as the scope of its power remains “necessarily one of degree.” NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 36-38 (1937). “Our understanding of the reach of the Commerce Clause, as well as Congress’ assertion of authority thereunder, has evolved over time.” Gonzales v. Raich, 545 U.S. at 43 (2005).

While the text of the Commerce Clause suggests only interstate commerce may be regulated by Congress, the Court has previously found that activity having a “substantial effect” on interstate commerce may also be subject to regulation. Wickard v. Filmore, 317 U.S. at 114 (1942) (Congress may regulate the private production of wheat. "[E]ven if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce”); Gonzales v. Raich, 545 U.S. at 17 (2005) (Similarly, Congress may regulate personal growth and consumption of marijuana because, in aggregate, it could “affect price and market conditions.”) Yet the Court has also affirmed that interpretation of the Commerce Clause is “subject to outer limits.” U.S. v. Lopez 514 U.S. at 567 (1995) (Congress may not prohibit the possession of a firearm in a school zone as it would require “[piling] inference upon inference” in an unreasonable manner that would essentially establish a general police power under the Commerce Clause); U.S. v. Morrison 529 U.S. at 598 (2000) (Congress may not regulate gender-motivated crimes because they “are not, in any sense of the phrase, economic activity”). However, both cases implicitly left the door open to the regulation of other, nonviolent activities. Gonzales v. Raich, 545 U.S. at 4 (2005) (Scalia, Concurring) (“Though the conduct in Lopez was not economic, the Court nevertheless recognized that it could be regulated [if it were] ‘an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated’”). The question in these cases, like the one currently before the Court, is whether “the means chosen [to regulate the activities] are ‘reasonably adapted’ to the attainment of a legitimate end under the commerce power.” Id. at 5.

Commerce Clause Decision In the case at hand, the government argues that the refusal to purchase health care insurance has a profound impact on interstate commerce because those individuals, who by will inevitably use health care services, will necessarily shift their costs to others who have insurance. 42 U.S.C. § 18091(F) (Congress found that “[t]his cost-shifting increases family premiums by on average over $1,000 a year”). The government further agues that this provision is crucial to the regulatory scheme set forth in the Affordable Care Act, as the Act relies on achieving near-universal insurance coverage of the population in order to broaden the risk-pool and achieve other objectives. While these arguments may be valid, they still cannot justify the constitutionality of Minimum Essential Care Provision because the regulation of inactivity, regardless of its inferred effect on either interstate commerce or a broader regulatory scheme, is not a legitimate end of the Commerce Clause. Thus, the Necessary and Proper clause does not provide a constitutionally sound basis either. United States v. Comstock, 130 S. Ct. at 1956 (2010) (“We look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power”). The government’s claim that an individual’s refusal to purchase health insurance constitutes an “activity” of self-insuring is a hollow, semantic argument. As the 6th Circuit Court found, “Every application of Commerce Clause power found to be constitutionally sound by the Supreme Court involved some form of action, transaction, or deed placed in motion by an individual or legal entity.” Thomas More Law Center v. Obama, (2010). None of these circumstances exist. A law that penalizes an individual, by mere virtue of his or her existence, for not purchasing a good or service not only has

no legitimate basis in the Commerce Clause but also offends the notion of individual liberty the Constitution and the Bill of Rights were designed to protect. It would be preposterous for this Court to permit the regulation of noneconomic intrastate inactivity, as it, on multiple levels, falls outside the scope of the original meaning of the Commerce Clause and relevant case law. As the Court has stated, “The enumeration [of powers] presupposes something not enumerated.” Gibbons v. Ogden, 22 U.S. at 72 (1824). It would also set a dangerous precedent. Because there is an infinite variety of activities that individuals refrain from engaging in at any given moment that may be inferred to substantially affect interstate commerce, the concern faced by the Court in Lopez persists in this case: “If we were to accept the Government’s arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.” U.S. v. Lopez, 514 U.S. at 567 (1995). The Court echoed this concern in Morrison: If granted additional jurisdiction, “Congress might use the Commerce Clause to completely obliterate the Constitution’s distinction between national and local authority.” U.S. v. Morrison, 529 U.S. at 15 (2000). Here too, in the interest of maintaining limits on legislative branch power, and regardless of the merits or intentions of the law, the Court refuses to further expand the scope of the Commerce Clause and finds the Minimum Essential Coverage Provision to be unconstitutional. Virginia Health Care Freedom Act In light of the conclusion that the minimum coverage provision is an unconstitutional exercise of Congress’ power under the Commerce Clause, it is not necessary to resolve whether the provision conflicts with the Virginia Health Care Freedom Act.

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