As AB readers know, I’ve written quite a number of in-depth posts on the ACA litigation—on the individual-mandate provision and on other issues as well. (The number, by my count, is at least 11,** including the one I posted yesterday, titled “Showtime At The Supreme Court”). And for your reading enjoyment, and in honor the big show that will be staged at the Court during the next three days, I’m posting the links to all 10** of the earlier posts I located, below.
But in response to a comment by Coberly to “Showtime” post today, I summed up my analysis of the individual-mandate issue in three paragraphs. Coberly wrote:
Why, is there nothing then you can’t do in the name of the commerce clause?
Or is it a mystery known only to those who “actually know the law,” as opposed to those of us who worry about little things like civil liberties as they are actually experienced by, say, human beings?
There are limits to what Congress can do in the name of the Commerce Clause, but because medical treatment for uninsured patients, including those traveling from one state to another, requires cost-shifting of huge amounts of money, some of it interstate, a law like the ACA is within the Commerce Clause limits.
That’s not to say that there may not be some other reason why a statute that falls within Congress’s Commerce Clause powers is unconstitutional, and although the people challenging the constitutionality of the mandate don’t expressly say this, their “freedom” and “liberty” claim is really a claim that the mandate violates the Fifth Amendment’s due process clause under a constitutional-law doctrine known as “substantive due process.” (That doctrine also is the legal doctrine under which the Supreme Court ruled that states can’t bar the sale and use of contraceptives, and is the doctrine underpinning Roe v. Wade and Lawrence v. Texas, the opinion that struck down state sodomy laws as unconstitutional.) But the Commerce Clause plays no role in this, one way or another.
Sure, if the Court strikes down as beyond Congress’s authority under the Commerce Clause a statute that requires people to do something or that bars them from doing something, then people are “free” to do or not do whatever the statute required or barred. But that’s just incidental. It isn’t less of an imposition on liberty for Congress to require people who can afford to do so to buy health insurance directly through the government by a tax under Congress’s taxing power (which is what the government does with Medicare) than to require then to buy it elsewhere under Congress’s Commerce Clause power.
Here are the links to the nine earlier ACA-litigation-related posts I was about to find:
- More on the activity/inactivity canard in the ACA litigation
- New wrinkles in the ACA litigation – Part I
- New wrinkles in the ACA litigation – Part II
- Markets and the ACA: Why the Supreme Court Will Uphold the ACA
- It’s not about regulating markets, after all! It’s about regulating the individual!**
- Paul Clement’s weird tail-can-morph-the-dog ACA-litigationargumen
- Judge Sutton Channels …Me?? States and individual liberty
- Judge Brett Kavanaugh’s Strange Political Prediction—AndOther Recent ACA-Litigation Events
- The Plot Sickens – The Heart of the ACA Litigation Movesto the Supreme Court
- Twenty-Six Republican State Attorneys General v. W. MittRomney (subtitle: Does Romney’s Economic Plan Violate State Sovereignty?)* [See asterisked correction below]
- The Cliff’s Notes for my post from yesterday subtitled“Does Romney’s Economic Plan Violate State Sovereignty
*Actually, as Linda Greenhouse pointed out in her NYT column on Thursday, which I discussed in my post yesterday, it isn’t 26 state attorneys general. It’s 22 Republican state attorneys general and four Republican governors whose states have Democratic attorneys general.
**I added this one to the list after I posted this post earlier today.