This is the second installment of Constitutional Accountability Center’s new series, ‘Strange Brew: The Constitution According to the Tea Party,’ exploring the Tea Party’s erroneous claims about the Constitution’s text and history.  Click here to view previous posts from this series.

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by Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center

Without a doubt, the greatest rallying point for Tea Party opposition to federal government power is the Patient Protection and Affordable Care Act, the historic health care reform law enacted earlier this year.  Reflecting Tea Partiers’ outrage, several state attorneys general and governors have filed lawsuits challenging the Act — including one filed by Virginia Attorney General Ken Cuccinelli, and another by a group of state officials led by Florida Attorney General Bill McCollum — alleging that the Act exceeds Congress’s powers and infringes upon state sovereignty.   Similarly, Virginia and Idaho have passed “nullification” laws that attempt to block implementation of the Act outright.  Every Republican on the Senate Judiciary Committee recently echoed the Tea Party’s concerns in Washington, joining a letter designed to prevent Supreme Court nominee Elena Kagan from hearing any challenges to the health care bill if they came before the Supreme Court.  Senator John Cornyn (R-TX) stated in his questions to Kagan that if the health care reform legislation is upheld “it seems to me there is no limit to the federal government’s authority and we’ve come a long, long way from what our founders intended.”

Yet such attacks on the Patient Protection and Affordable Care Act are entirely without merit. Contrary to Tea Party rhetoric, Congress’s authority to pass legislation to fix problems in the health care industry, which comprises approximately 20 percent of the U.S. economy, is firmly rooted in the Constitution, in particular through the provisions in Article I, section 8 authorizing Congress to regulate interstate commerce and to tax and spend for the general welfare, as well as to enact laws that are necessary and proper in exercising its other powers.

This post will address the Tea Party’s constitutional claims regarding the individual mandate.  Later in our Strange Brew series, we will take on the arguments that the Affordable Care Act is a violation of state sovereignty and the Tenth Amendment; we will also demonstrate that state efforts to block the health care reform bill –through local “nullification” efforts – run squarely into the Constitution’s Supremacy Clause and the lessons learned in the Civil War and, more recently, the Civil Rights Era, when nullification efforts were last seriously attempted by the states.

The Individual Mandate

Opponents of the health care law have aimed their harshest criticism at the so-called “individual mandate,” arguing that Congress’s constitutional powers do not include the power to require individuals to buy health insurance or pay a tax penalty.  Critics argue that it is “unprecedented” for the government to force individuals to purchase an actual product.  This is doubly wrong.  First, as pointed out below, the Act actually does not force the purchase of anything; it simply imposes a tax penalty on individuals who choose to self-insure.  Second, as Professor Adam Winkler points out, as early as in the second 1792 Militia Act, Congress required male citizens to obtain certain weapons and other items, such as a “knapsack,” ammunition, and, in some cases, “a serviceable horse.”

The Individual Mandate Is Constitutional under Congress’s Power to Regulate Commerce and Enact “Necessary and Proper” Laws

More fundamentally, the Affordable Care Act’s critics miss the point entirely when they argue that choosing to remain uninsured cannot be regulated because it is not “economic” activity.  Choosing to self-insure is an economic act—one that imposes enormous cost on taxpayers.  Many young people, for example, have calculated that it is in their economic best interest not to buy insurance and just receive emergency medical attention if needed.  When these uninsured fall seriously ill or get into an accident, they go to the emergency room, where they often run up medical bills that they cannot afford to pay, leaving this bill for other Americans to pay as taxpayers and in the form of higher insurance premiums.  Uninsured medical costs are enormous in this country.  According to statistics compiled by Families USA, in 2005, 48 million Americans were uninsured and they incurred $43 billion in medical costs that they could not pay, an average of nearly $900 per uninsured individual.  This is considerably more per person than the tax penalty that the Act imposes on individuals who choose not to obtain insurance.

The Affordable Care Act generally, and the individual mandate specifically, are plainly constitutional under the Supreme Court’s most recent Commerce Clause ruling, the 2005 case of Gonzales v. Raich.  In both the Court’s majority opinion, and a separate concurring opinion written by Justice Antonin Scalia, the Supreme Court ruled that Congress, as part of its regulation of interstate commerce in illegal drugs, could prohibit a person from growing marijuana in her own backyard for personal, medicinal use (in a state where doing so was legal under local law).  Certainly if backyard, medicinal marijuana cultivation falls under Congress’s Commerce Clause power, Congress can regulate the decision to be uninsured.

Congress’s choice of the individual mandate as a mechanism to reform health care and regulate health insurance is a constitutional exercise of Congress’s sweeping power under Article I, section 8 to enact laws that are “necessary and proper” to carry out its other powers, such as the power to regulate commerce.  It is hard to imagine anything more “necessary” and more “proper” than the individual mandate as part of a comprehensive congressional effort to fix the country’s health care crisis, particularly because the incentives to remain uninsured would otherwise increase under popular and important parts of the Act, such as the ban on the refusal by insurance companies to cover individuals with pre-existing conditions.  Without the mandate, this ban would further encourage young adults, who constitute the greatest percentage of uninsured Americans, to forgo purchasing health insurance until they get sick, leaving the healthiest individuals out of the insurance market and driving up the cost of premiums and care even more.

Congress’s power to determine whether a particular legislative provision is “necessary and proper” is broad.  As the great Chief Justice John Marshall explained in McCulloch v. Maryland (1817), Congress should be shown significant deference regarding what laws it considered to be appropriate in carrying out its constitutional duties.  As the Supreme Court recently affirmed this Term in United States v. Comstock, “[i]f it can be seen that the means adopted are really calculated to attain the end, the degree of their necessity, the extent to which they conduct to the end, the closeness of the relationship between the means adopted and the end to be attained, are matters for congressional determination alone.”

The Individual Mandate Is Constitutional under Congress’s Power to Tax and Spend for the “General Welfare” of the United States

As noted above, the penalty imposed to enforce the individual mandate is also firmly grounded in Congress’s authority to tax and spend to promote the general welfare of the United States.  The Act does not, in fact, force individuals to purchase insurance.  Rather, if individuals choose to remain uninsured, they must simply pay a “shared responsibility payment,” a tax penalty that is paid to the Internal Revenue Service.  This tax penalty is set at a level below the average cost imposed by the uninsured, but is an attempt to at least recover some of the costs the uninsured impose on the rest of Americans.

Congress is well within its power to determine that such a requirement is in the interest of the country’s welfare, given the cost-savings that come from expanding the pool of insured individuals and reducing the uncovered costs of emergency room care, which would lead to an overall decrease in the total cost of health care borne by individual Americans.  Congress’s Article I, section 8 power to “lay and collect Taxes” to provide for the “general Welfare of the United States” has long been recognized as “extensive.”  License Tax Cases, 72 U.S. (5 Wall.) 462, 471 (1867).  In upholding the Social Security Act in Helvering v. Davis (1937), the Supreme Court recognized that it is within Congress’s “wide range of discretion” to determine what constitutes the “general welfare,” and to tax accordingly.

Some critics are skeptical that the individual mandate is truly a “tax.”  But it certainly behaves like a tax: if the penalty applies, it must be reported on your tax return, and the penalty is assessed and collected just like other penalties imposed under the Internal Revenue Code.  And the Congressional Joint Committee on Taxation analyzed the provision as a “tax,” “excise tax,” and a “penalty.”  If it walks like a duck, talks like a duck—and has a big name tag on that says “Duck”—well, you know.

Conclusion

Tea Partiers and other critics are free to continue asserting that the Act is unwise policy and an endeavor better left to the states, but they should really leave the Constitution out of these arguments.  Since the health care industry constitutes almost 20% of our Nation’s economy, no one can genuinely dispute that Congress has the authority to regulate health care and the health insurance industries under its Commerce Clause power.  Congress determined that the health care reform law, including the penalty for self-insuring, was the appropriate means of regulating the health care and insurance markets.  Since the Act does not run afoul of any other constitutional provision—there is no constitutional right to inflict uninsured health care costs on the American taxpayers—health care reform, including the “individual mandate,” falls squarely within Congress’s power to enact necessary and proper legislation to carry out its powers to regulate commerce and tax and spend for the general welfare.