The Patient Protection and Affordable Care Act and the breadth and depth of federal power.

• Author: Clement, Paul D.

It is ah honor, especially for a graduate of Harvard Law School, to be in a debate with Professor Tribe. Professor Tribe and I certainly agree about much of the background of the Patient Protection and Affordable Care Act (the Act) (1), although there certainly are some differences between us. I plan to make three points about the background of the Act and then lay out the relatively straightforward argument that the Act is unconstitutional.

First, this Act is hundreds of pages long. It is doubtful that any legislator who voted for of against it read the entire Act. There is undoubtedly at least one provision in the statute that is unconstitutional, maybe one that nobody has read yet, but it is out there. For the sake of convenience and brevity, however, I will focus on the individual mandate.

Second, it is important to understand how the individual mandate works. Some have argued that because provisions in the Act reference the tax code, it is therefore a tax provision. But the mandate and the penalty--which is used to enforce the mandate--are separate, and they operate separately. This is clear because there are individuals who, under the Act, are subject to the mandate but are exempt from the penalty. For example, an individual with income below a certain threshold will not be penalized for failing to purchase health insurance, but the Act still mandates that such individuals purchase health insurance. (2)

The last thing I want to emphasize about the Act is that the mandate is not directed to the market for healthcare, but rather the market for healthcare insurance. This is a key distinction between the way Professor Tribe characterizes the mandate and the way I do. Professor Tribe believes this is all about the healthcare market, and the mandate merely regulates the timing of your participation in the healthcare market. (3) I do not believe that is true. The mandate forces you to buy insurance, regardless of whether you use that insurance when you enter the market for healthcare. Nothing in the statute requires you to use health insurance when you walk into the hospital. Thus, the mandate is about forcing people to buy health insurance--people who could otherwise consciously decide to make a rational economic choice not to buy health insurance. That is what the statute is about, and that gets to the nub of the argument concerning why it is unconstitutional.

The argument for its unconstitutionality is relatively simple. The place to start, as with any constitutional argument, is with the text of the Constitution. The Commerce Clause refers to the power to regulate commerce. (4) The fundamental problem with this Act is that forcing somebody to engage in commerce, so that the government can better regulate commerce, is not itself the regulation of commerce. When you force somebody to engage in commerce, you create commerce, and that is not what the Commerce Clause authorizes.

The challengers to the Act rely on, among other cases, United States v. Lopez (5) and United States v. Morrison (6)--the only cases in recent history to strike down federal legislation as exceeding Congress's power under the Commerce Clause. (7) Part of the explanation for this is that beyond Lopez and Morrison, the breadth of the modern Commerce Clause as understood by the Supreme Court is quite broad. That might seem like a weakness for somebody making a Commerce Clause challenge, but it actually is not. It is important to understand the consequences of the argument that the mandate is constitutional. If it is constitutional, then Congress would have essentially a general police power. A ruling in favor of the mandate would combine the great breadth of the modern commerce power with a power of far greater depth. Congress has the power to regulate commerce already, but Congress also would have the power to force you to engage in all kinds of commerce so it can better regulate you. When you look at the breadth and the depth of the power asserted, there would be nothing outside Congress's reach. It basically covers the waterfront.

If you think about the breadth of the modern Commerce Clause, it is fair to say that one of the few things a citizen can do to avoid the regulatory reach of the federal government is to refrain from engaging in commerce. Perhaps you can stay within a thousand feet of a school zone, like the defendant in Lopez, (8) but for the most part, if you want to avoid federal regulatory power, all you can do is simply exercise your right not to engage in commerce. If the mandate is constitutional, however, then you would not have that right either.

Professor Tribe...