I do not generally read Supreme Court decisions and opinions but was intrigued with the controversy around the affordable health care act case so I read it.
I found Justice Ginsburg’s opinion; joined by one other Justice for the entire opinion and by three Justices for the majority of her opinion, the best thought out and well argued especially concerning the applicability of the commerce clause to the laws individual mandate provision. The mandate’s applicability under the commerce clause was thrown out by the court’s decision, but to my mind, and as argued by Justice Ginsburg, was thrown out wrongly under the commerce clause. However, it was upheld as being constitutional for other reasons.
The underlying issue related to if the commerce clause applies to the law’s individual mandate revolves around the premise, on one side, that if you make no purchase (referred to in the opinions often as “to take or taking no action”) you are not involved in commerce and so the commerce clause is not grounds for the constitutionality of the individual mandate. Not buying cars and not buying vegetables are used by the justices as examples of if you do not buy them, even if you affect the cost of them to others by not buying them, you not taking action to buy cannot be considered engaging in commerce.
Justice Roberts and the dissenting Justices say because you might one day, at some point in the future purchase medical services, (like you might buy a car or broccoli in the future), you cannot be considered engaging in commerce now for the purpose of the law.
However, Ginsburg argues that 60% of the uninsured use medical services each year and when you look at a five year period the use rate is 90%, so therefore, unlike a car or broccoli which you may never buy or not buy for decades, your engagement within the healthcare market in the near term is almost, and certainly statistically, certain. She also points out that unlike buying a car or broccoli, your need for and use of health care services, which you may or may not be able to afford to pay out of pocket, can happen with no notice and because of no choice you have or can have made. She points out that by various laws, professional codes of conduct and ethics and social conventions, many health services and venues, such as emergency rooms, are obligated to provide you care even if you cannot pay. For these reasons she, rightly to my mind, says you are engaged in commerce because your inaction to provide for your own care costs does not remove you from the class of persons engaged in healthcare commerce.
Action or no action is what the other justice’s opinions use to determine if you engage in health care commerce. They dismiss out of hand future participation as almost theoretical or at least something that may not happen for decades and so therefore immaterial for consideration under the commerce clause. They ignore the statistical evidence that healthcare is never far away and the fact that unlike a car or broccoli, if you get hit by a bus, you need and get healthcare even if you can’t pay and even if you take no action such as in the case of you being unconscious and you getting cared for. You are therefore engaged in commerce having taken no action.
The justices who reject this argument do agree that because someone has to pick up the cost of health services not paid for by people without health insurance and who cannot pay there is a difference between healthcare commerce and other commerce…to a point. But they point out that should the US economy make it imperative people buy US made cars, that this would make health care commerce less unique and so it opens the doors for other mandates not currently foreseen. They don’t comment on the uniqueness of how being involved in healthcare commerce is from other types of involvement in commerce where you must take action to be involved AND there is also no “virtual certainty” you will need to be involved in healthcare commerce at some time.
While Ginsburg has this embedded, to some extent, in what she states she does not expressly make the argument that along with the other reasons she believes everyone is involved in healthcare commerce, it is not this affordable healthcare law, but other laws, professional codes and ethics, societal norms, common decency, the world view of what basic human rights are that cause people who take no action to still be involved in healthcare commerce. In this and the other ways she separated buying a car from healthcare means no one has a choice if they are involved in healthcare commerce. Therefore, it is society that causes your involvement in healthcare commerce in addition to the reasons the dissenting Justices agreed it healthcare commerce is different because, unlike a buying a car, you will get emergency and other medical care at times regardless of your ability to pay or take action and that that healthcare must be paid for by you or if not then by others (in the form of higher insurance premiums, medical fees, drug costs, etc.) for you.
“Not” taking action, as the Justices who say that taking no action means you are not engaged in commerce, really means you are simply “not” paying for the health care you get or will get and not that you are not in fact engaged in healthcare commerce.
The uniqueness of the nature of everyone’s’ involvement in healthcare commerce and the role other laws, professional codes, ethics, societal norms is the reason why taking no action in the traditional sense (of purchasing something) to be considered engaged healthcare commerce is not precedence for taking no action in most other types of commerce. This difference means that saying the individual mandate is constitutional under the commerce clause does not set a slippery-slope precedent for the government to issue other mandates based on the commerce clause if the involvement in commerce for those other mandates is more similar to the involvement in commerce as it would relate to buying a car or broccoli.
With regards to Justice Roberts saying that the “penalty” which the law ordered the IRS to collect and enforce and which was based on income levels like income taxes, is constitutional under the alternative argument made by the government that if the provision was not allowed by the commerce clause it should be allowed under the constitutional powers of taxation and spending. I agree. While it would have been more straight forward had the law stated that the penalty was a tax, the way the penalty was structured, collected, and enforced under the new law, I believe provides reasonable foundation for Justice Roberts to side with the majority that the mandate is constitutional under the tax and spend provisions of the constitution. I also take Justice Roberts at his word that it is the court’s role to see how a law passed by congress can be considered constitutional and only rule it unconstitutional if there is no way to find it constitutional.
