Much ado about nothing: why the war over the Affordable Care Act's individual mandate will end with a whimper and not a bang.

• Author: Kiely, Christian G.

"Whether or not such a law is wise, the people's representatives have the constitutional authority to enact it. What was said during the constitutional struggle over the New Deal is still true today: for objectionable social and economic legislation, however ill-considered, 'appeal lies not to the courts but to the ballot and to the processes of democratic government."' (2)

1. INTRODUCTION

   Since the emergence of "modern" medicine in America at the turn of the twentieth century, political debate has raged over reforming and expanding access to the healthcare system. (3) While the movement enjoyed limited victories over the years, the Patient Protection and Affordable Care Act of 2010 (PPAcA or the Act) represents the first successful attempt at comprehensive healthcare reform. (4) On March 23, 2010, the day President Obama signed the bill into law, the attorneys general of thirteen states filed suit in united States District Court challenging the constitutionality of various provisions of the Act. (5) While many prior failed attempts at healthcare reform have included some version of an "individual mandate," the PPACA represents the first time Congress enacted a general requirement that all Americans obtain health insurance or pay a penalty. (6) It is this provision--which one author called "health care reform's most controversial element"--that lies at the heart of the constitutional challenges. (7)

   Specifically, the Act's critics contend that the individual mandate, among other provisions, unconstitutionally exceeds the scope of Congress's power to regulate interstate commerce. (8) Although it would likely come as surprise to many Americans, it is this power that Congress turns to most frequently to find the authority for its broad-ranging enactments. (9) While commentators on both sides of the debate argue fervently for their respective positions--that the mandate either falls far outside or well within Congress's regulatory power--both sides believe the showdown carries significant implications for the future of Commerce Clause jurisprudence. (10) If the history of Commerce Clause litigation tells us anything, however, it is that regardless of outcome, the present challenge will do relatively little to define the limits of Congress's regulatory authority. (11) Put simply, this particular challenge will not "upset the apple cart" of Commerce Clause jurisprudence. (12)

   This Note will first provide a brief history of healthcare reform efforts in the twentieth century. (13) Next, the Note will discuss Congress's power to enact legislation, focusing on its power to regulate interstate commerce. (14) It will then analyze the evolution of Commerce Clause jurisprudence and the century expansion of Congress's authority to regulate interstate commerce in the late twentieth century. (15) This Note will then turn to a discussion of the enactment of the PPACA and the nature of the ensuing legal challenges. (16) In the following section, this Note will analyze the challenge and where it fits in the scheme of modern Commerce Clause jurisprudence. (17) In doing so, this Note will argue that the individual mandate falls well within Commerce Clause power and does not represent an expansion of that power. (18)

2. HISTORY

   1. Healthcare Reform in the Twentieth Century

      Healthcare reform has undoubtedly been one of the greatest political causes of the twentieth century, and continues to feature prominently in twenty-first century political debate. (19) Most reform efforts over the past century have focused on the best way to finance medical care. (20) While federally administered health insurance was first seriously considered as a component of Social Security under Franklin D. Roosevelt's New Deal, the shift towards advocating for a "genuinely national" plan came with the 1943 Wagner-Murray-Dingell Bill and President Truman's proposed health program of 1945, both of which called for compulsory national health insurance funded by a payroll tax. (21) After these early attempts failed, due in large part to vehement opposition from the American Medical Association (AMA) and general fears of "socialized medicine," the movement first met limited success with the passage of Medicare and Medicaid under President Johnson in 1965. (22) After another failed attempt at complete overhaul by President Clinton in 1992, the movement finally succeeded in 2010 with the passage of the PPACA, which President Obama signed into law on March 23 of that year. (23)

      The Act, dubbed "Obamacare" by its critics, immediately faced legal challenges that had been developing even before the bill became law. (24) These numerous legal challenges contend that the Act, and in particular the requirement that Americans purchase health insurance or pay a penalty, exceeds the scope of Congress's power to regulate interstate commerce--the power pursuant to which Congress enacted the legislation. (25)

   2. Congressional Power and Its Limits

      The federal government was established as a government of "limited [and] enumerated" powers. (26) And while the federal government is undoubtedly an omnipresent fixture in modern American life, at the turn of the twentieth century, the extent of most Americans' interaction with the federal government constituted a weekly trip to the post office. (27) Following the Great Depression, courts began to define the scope of Congress's Commerce Clause authority in a series of landmark cases that tested the permissible reach of the federal government into the daily activities of ordinary citizens. (28)

      The text of the Commerce Clause itself reads, "[The Congress shall have the Power] ... to regulate Commerce ... among the several states." (29) Of course, like most things in constitutional law, the meaning of this clause has been the subject of great legal and political debate for the better part of the last century. (30) Now, in the early twenty-first century, the law in this area is fairly well settled, particularly in comparison to other areas of constitutional law. (31) Yet, as the debate over the Act highlights, the Commerce Clause has become a political lightning rod for conservatives fighting for smaller government and an originalist interpretation of the Constitution. (32)

      1. The Power to Regulate Interstate Commerce and the pre-1937 Commerce Clause

         Prior to the implementation of the New Deal in the 1930s, Congress's power to regulate "commerce ... between the several states" was largely limited to exactly the kind of thing most lay people associate with interstate commerce--"buying and selling across state lines." (33) Regulations of this type--the purest form under the Commerce Clause--cover the interstate exchange itself or the instrumentalities used to facilitate the exchange. (34) As President Franklin D. Roosevelt sought to implement programs designed to help the country emerge from the depths of the Great Depression, however, he turned to the Commerce Clause for the necessary legislative authority. (35)

         Legislation passed pursuant to an expanded vision of the Commerce power was first challenged in Wickard v. Filburn (36) and United States v. Darby (37) in the early 1940s. (38) In United States v. Darby, the Supreme Court considered whether the Fair Labor Standards Act of 1938 could constitutionally regulate labor conditions in the workplace when the enterprise shipped its products across state lines. (39) Specifically, the Court asked whether Congress has the "constitutional power to prohibit the shipment in interstate commerce" of goods produced in violation of the standards prescribed by the act, and, in addition, whether Congress could prohibit altogether the manufacture of goods in a manner not conforming to the act. (40) In answering the first question in the affirmative, the Court explicitly overruled its 1918 decision in Hammer v. Dagenhart, (41) which stood for the exact opposite proposition, but had not been followed in the twenty-two years since it was decided. (42) In answering the second question, the Court held:

         The power of Congress over interstate commerce is not confined to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate commerce. (43) While not explicitly discussed in the opinion itself, the "appropriate means to the attainment of a legitimate end" language represents the Court's acknowledgement that the Necessary and Proper Clause of the Constitution allows the Commerce Clause to reach activities that affect interstate commerce only indirectly. (44) The Court also held that Congress may regulate intrastate activities that have a "substantial effect on the commerce or the exercise of the Congressional power over it," a doctrine that the Court continued to develop in the next major New Deal case, Wickard v. Filburn. (45) The Court further held that it was not in the business of examining the motivations behind particular acts of Congress, and that similarities between the Fair Labor Standards Act and "the exercise of the police power of the states" was irrelevant, provided that the nature of the regulations accomplishing that end fell within Congress's commerce power. (46)

         Darby represented the beginning of a fundamental change in the way the Court viewed the Commerce Clause. (47) Luckily for President Roosevelt and the New Dealers, the Court was willing to look to the Commerce Clause to find Congressional authority that had not existed prior to 1937. (48) For instance, in Wickard v. Filburn, the court evaluated the constitutionality of the Agricultural Adjustment Act of 1938, which limited the amount of wheat that a farmer could grow per acre of land. (49) Unlike in Darby, where the lumber produced was destined, at least in...