{"id":427,"date":"2013-10-16T08:59:45","date_gmt":"2013-10-16T12:59:45","guid":{"rendered":"http:\/\/sites.law.duq.edu\/juris\/?p=427"},"modified":"2013-10-16T08:59:45","modified_gmt":"2013-10-16T12:59:45","slug":"obamacare-the-acas-individual-mandate-and-the-constitution","status":"publish","type":"post","link":"https:\/\/sites.law.duq.edu\/juris\/2013\/10\/16\/obamacare-the-acas-individual-mandate-and-the-constitution\/","title":{"rendered":"Obamacare: The ACA\u2019s Individual Mandate and the Constitution"},"content":{"rendered":"
\"Photo<\/a>
Photo courtesy of http:\/\/hanabusa.house.gov.<\/figcaption><\/figure>\n

by: Thomas Cocchi, Staff Writer<\/p>\n

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The government shutdown, and the impending debt ceiling hit on October 17th, has come with renewed challenges from the Republicans in the House of Representatives and the Senate to the Affordable Care Act (\u201cthe Act\u201d), commonly known as \u201cObamacare,\u201d and, more specifically, to its individual mandate. \u00a0While these legislative challenges to the Act have been brought by Republican members of Congress, urged on by their supporters on the right, reactions to these continued challenges by Democrats, and their supporters on the left, have quite often referred to the Act as \u201csettled\u201d law. \u00a0Those in favor of the Act and its general policy background rely not only on the Act\u2019s passage through Congress, but also on a Supreme Court decision confirming its constitutionality. \u00a0The Supreme Court\u2019s decision in NFIB v. Sebelius<\/i> established the constitutional argument for the Act, surprisingly relying on an opinion authored by conservative Chief Justice John Roberts. \u00a0In the Sebelius<\/i> majority opinion, Chief Justice Roberts addressed the two main government arguments for the constitutionality of the individual mandate from the ACA. \u00a0Chief Justice Roberts began with an acknowledgement that his own argument would seem to stretch the reasoning of the court in favor of the constitutionality of the statute, stating that it is not the Court\u2019s job to \u201cprotect the people from the consequences of their political choices.\u201d<\/p>\n

The first argument raised in favor of the ACA\u2019s individual mandate was based on the Commerce Clause. \u00a0Those familiar with Commerce Clause jurisprudence in recent history are well aware of its expansion to allow Congress to regulate many activities previously left to the states. \u00a0However, Chief Justice Roberts declined to expand the use of the Commerce Clause as a basis for legislation any further, and rejected the government\u2019s argument. \u00a0The Commerce Clause, Chief Justice Roberts explained, did not give Congress unfettered ability to regulate the economy by any factor they found useful. \u00a0Roberts explained that \u201c[c]onstruing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.\u201d[1]<\/a> \u00a0Chief Justice Roberts thereby rejected the government\u2019s Commerce Clause argument, stating that the Affordable Care Act would be unconstitutional under a purely Commerce Clause analysis. \u00a0The full significance of Chief Justice Robert\u2019s halting of the stampeding bull that was Commerce Clause jurisprudence is of too much significance to cover effectually in the limited scope of this posting. \u00a0Therefore, it must suffice to say that some Constitutional Law scholars have seen Chief Justice Robert\u2019s reigning in of the Commerce Clause power in Sebelius<\/i>, as equivalent in significance to the actual outcome of the case itself.[2]<\/a><\/p>\n

Next, Chief Justice Roberts turned to the issue of the individual mandate as being an exercise of Congress\u2019s authority under the taxing power. Chief Justice Roberts admitted that \u201cCongress\u2019s decision to label this exaction a \u2018penalty\u2019 rather than a \u2018tax\u2019 is significant because the [ACA] describes many other exactions it creates as \u2018taxes.\u2019\u201d[3]<\/a> \u00a0Even with this distinction within the law itself, Chief Justice Roberts nevertheless saw room to interpret the individual mandate\u2019s penalty as a tax. \u00a0In order to rationalize ignoring the language Congress chose to use, Chief Justice Roberts relied on the Supreme Court\u2019s precedent from Bailey v. Drexel Furniture Co.<\/i>, which found that a \u201ctax\u201d on goods made in factories that employed child labor was actually, in its effect, a \u201cpenalty.\u201d \u00a0The argument in Drexel<\/i> is a classic case of the court reigning in Congress\u2019s attempts to expand its power by creative word use. \u00a0However, Drexel<\/i> had not previously been used to make the opposite conclusion in saying that Congress was in fact operating under a power it was not invoking in the language of a bill. \u00a0Chief Justice Roberts mirrored the three-part analysis that the Court employed in Drexel<\/i> to show that the \u201cpenalty\u201d Congress had specifically created under the individual mandate of the ACA, could actually be construed as a \u201ctax\u201d in order deem the law as constitutional. Continuing to insist that the penalty for non-compliance under the individual mandate of the ACA was actually a tax for the next several pages, Chief Justice Roberts eventually concluded with a disclaimer regarding the majority decision.<\/p>\n

Perhaps to save face with his conservative colleagues, Chief Justice Roberts figuratively washed his hands of the consequences of the decision in his conclusion, asserting that the majority sought only to enforce the limits on the powers of the federal government, and that \u201cthe court does so today. \u00a0But the Court does not express any opinion on the wisdom of the [ACA]. \u00a0Under the Constitution, that judgment is reserved to the people.\u201d[4]<\/a><\/p>\n


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[1]<\/a> NFIB v. Sebelius<\/i>, 132 S.Ct. 2566, 2587 (U.S. 2012) (emphasis supplied).<\/p>\n<\/div>\n

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[2]<\/a> A number of resources on all political \u201csides\u201d confirm this analysis. Three that do this well are:<\/p>\n

Cuccinelli, Kenneth. \u201cVictory in Defeat\u201d National Review Online, June 29, 2012. Accessed at http:\/\/www.nationalreview.com\/articles\/304392\/victory-defeat-kenneth-t-cuccinelli-ii<\/a><\/p>\n

Rivkin, David; Casey, Lee & Grossman, Andrew. \u201cNFIB v. Sebelius<\/i> and the Triumph of Fig-Leaf Federalism\u201d Cato.org, September, 2012. Accessed at http:\/\/www.cato.org\/sites\/cato.org\/files\/serials\/files\/supreme-court-review\/2012\/9\/scr-2012-rivkin.pdf<\/a><\/p>\n

Sack, Kevin & Lightblau, Eric. \u201cFor Attorneys General, Long Shot Brings Payoffs\u201d New York Times Online, June 30, 2012. Accessed at http:\/\/www.nytimes.com\/2012\/07\/01\/us\/politics\/for-attorneys-general-health-law-long-shot-brings-payoffs.html?ref=healthcarereform&pagewanted=all&_r=0<\/a><\/p>\n<\/div>\n

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[3]<\/a> Sebelius<\/i>, 132 S.Ct. at 2583.<\/p>\n<\/div>\n

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[4]<\/a> <\/i>Sebelius<\/i>, 132 S.Ct. at 2608.<\/p>\n<\/div>\n<\/div>\n

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by: Thomas Cocchi, Staff Writer The government shutdown, and the impending debt ceiling hit on October 17th, has come with renewed challenges from the Republicans in the House of Representatives and the Senate to the Affordable Care Act (\u201cthe Act\u201d), commonly known as \u201cObamacare,\u201d and, more specifically, to its individual [\u2026] <\/p>\n

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