Reflections on the Doctrinal and Big-Picture Issues Raised by the Constitutional Challenges to the Patient Protection and Affordable Care Act (Obamacare)

Abstract

The challenges to the federal healthcare statute making their way to the Supreme Court appear to suffer from a problematic blend of doctrinal hypertechnicality, theoretical imprecision, and (an understandable but misplaced) fear of an all-powerful Congress. None of this is to say it will be impossible for any of these challenges ultimately to succeed. Instead, it is to say that any such success would either be revolutionary (in the way that Justice Clarence Thomas's desire to return to nineteenth century cases concerning the scope of federal power would, if implemented, completely upend the current constitutional convention), or it would be tailored to reach a particular result on a particular contentious issue (in the way Bush v. Gore is considered by many to be a ruling good for only one day and one election.) In particular, the challengers make a number of untenable moves. They mistake novelty for constitutionality. They also overstate the novelty of the so-called mandate provision of the healthcare law, when it is properly viewed in constitutional context. Importantly, the word regulate (used in the Commerce Clause) does not presuppose preexisting activity as it is used elsewhere in the Constitution. Moreover, Congress could easily have satisfied any activity requirement by including a jurisdictional element in the law or styling it in terms of anti-discrimination. Importantly, no practical or theoretical values would be served by making Congress go through these drafting hoops; the claim that an activity requirement is necessary or helpful to protect Tenth Amendment principles does not hold up to close scrutiny. Congress mandated purchase of healthcare for plausible economic reasons and reasons that do not violate any constitutional anti-commandeering/anti-instrumentalization principles. Finally, there is no requirement that Congress label a tax as such to have the power to impose one.