Going into the week, there were plenty of phrases related to the Supreme Court’s hearing on the Affordable Care Act that may seem obscure to the American mainstream, but were likely to be bandied about quite a bit. Like it or not, we were going to hear about the “necessary and proper” clause, the commerce clause, and “severability.”
But we’ve also been introduced to the “limiting principle,” which was referenced literally 16 times during yesterday’s proceedings. What’s that all about?
Ezra Klein talked this morning to Harvard law professor Charles Fried, solicitor general under President Ronald Reagan, a constitutional law scholar who believes the health care mandate is obviously permissible. Ezra asked about the “limiting principle” that’s gotten so much attention.
Klein: Tuesday’s arguments seemed to focus on the question of a “limiting principle.” So is there a limiting principle here?
Fried: First of all, the limiting principle point kind of begs the question. It assumes there’s got to be some kind of articulatable limiting principle and that’s in the Constitution somewhere. What Chief Justice John Marshall said in 1824 is that if something is within the power of Congress, Congress may exercise that power to its fullest extent. So the question is really whether this is in the power of Congress.
Now, is it within the power of Congress? Well, the power of Congress is to regulate interstate commerce. Is health care commerce among the states? Nobody except maybe Clarence Thomas doubts that. So health care is interstate commerce. Is this a regulation of it? Yes. End of story.
Here’s another thing Marshall said. To regulate is “to make the rule for.” Does this make a rule for commerce? Yes!
The “limiting principle” phrase may be largely unfamiliar, but it’s not complicated: Congress is limited in its regulatory powers. Conservative justices seemed to argue yesterday that these powers do not extend to requiring American consumers to purchase insurance they may not want, and as part of the activity/inactivity dynamic, be considered part of a market they’re not participating in.
Fried’s point is that these justices are missing the point – and they are.
The Commerce Clause empowers the federal government to regulate interstate commerce; the American health care system is interstate commerce; and the Affordable Care Act regulates the health care system. Ergo, the ACA fits comfortably within the confines of the Commerce Clause. Q.E.D.
As for the activity/inactivity question, yes, there may be folks who don’t want to buy insurance, and they would be penalized under the law. But under our system, those folks still get sick, still go to the hospital with medical emergencies, and – here’s the kicker – still get care.
Of course, when the uninsured get this care, and can’t pay for it, the costs are passed on to the rest of us – it makes the entire system more expensive, with hospitals and medical professionals providing care without compensation from the patient. As a consequence, those who would choose not to get coverage have a significant impact on the larger health care system, which is precisely why the notion of a mandate enjoyed broad, bipartisan support up until late 2009. There was never any doubt as to its constitutionality.
It’s also one of the reasons so many legal scholars find the case itself so bizarre, and consider the favorable outcome such a no-brainer.