The ACA mandate: limited government on trial

James Madison died in the summer of 1836. Should the Supreme Court uphold the Patient Protection and Affordable Care Act (ACA), I fear his spirit will officially perish in the coming months.

It is far easier for the federal government to bolster its duties, rather than curb ever-larger temptations. Human nature being what it is, the Constitution marks a clear, concise restriction on the national government’s authority. In Federalist 45, Madison states, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State government are numerous and indefinite.” I’m no fan of Massachusetts healthcare and its decree for private insurance contracts at the state level, but it’s the lesser of two governmental evils. Mitt Romney really ought to be quoting Federalist 45 on the campaign trail.

This week, the US Supreme Court has heard an amazing six hours of oral arguments concerning ACA, the most notorious of arguments being over the individual mandate. Back in the WWII era, the federal government placed a series of wage and price controls on American employers. As a natural economic response, employers attached health care plans to compensation packages, in order to compete for skilled workers. This old model of linking insurance with employment, spurred by Uncle Sam himself, means that a sick employee who loses her job also loses her health care. Because no sane insurance company wants to take on a customer when he or she is sick, too many people are left in a desperate situation. A key selling-point for the ACA overhaul has been disallowing insurance companies from denying coverage to those with preexisting conditions. While this is praiseworthy, there’s no such thing as a free lunch — or in this case, a free check-up. Forcing insurance companies to take on the ill means counterbalancing with younger, healthier premium payers. Yet, once again, the government has fostered a perverse set of incentives. Why purchase insurance when you’re in good-shape when insurers will have to accept you when your health takes a downturn? Enter the individual mandate.

The magic words for the past 75 years of Constitutional law have been contained in the Commerce Clause, granting Congress the power to “regulate commerce among the several states.” These words have acted as the million-dollar-phrase since the New Deal Era, ushering in justification for broad regulations and the ratcheting-up of federal whims. Ironically, federal regulations prevent consumers from purchasing insurance across state lines, but that’s besides the point when the insurance rulebook is being written not in doctor’s offices but on the Hill. The primary precedents in defending ACA are “Wickard v. Filburn” (1942) and “Gonzales v. Raich” (2005), which rule that activities like growing private wheat for cattle or harvesting medicinal marijuana have substantial enough effects on interstate commerce to warrant federal regulation. Don’t get me wrong; these precedents make me woozy, but at least these cases regulated the choice of consciously entering a market and not the non-action of simply living, breathing and not buying insurance.

I understand that healthcare is a mess in this country. So are obesity rates and television habits. Will Uncle Sam next issue an exercise mandate? Buy an elliptical or face a penalty? If the Big-Three auto companies are short on sales, is there anything to prevent purchasing Fords-by-fiat?

Regardless of the ruling, the nine members of the bench will surely be smeared as “activists” who are politically motivated. Here’s one thing I wish we could dub the judges: textual. That is, they stick to the original words and meaning of our Founding document. The Constitution is not a crystal ball. Judges shouldn’t stare into it to see anything they wish.

A variety of groups camped outside the Supreme Court this week, urging the Court to have a heart and uphold the mandate. But as the third branch of our constitutional republic, the judiciary is not meant to ensure good social policy, efficiency, or charity. It’s meant to uphold the law. In fact, a shaky legal foundation may very well undermine good intentions. The ACA set out to insure more Americans and lower cost, yet may be achieving just the opposite. Paradoxically, many express fear that the Supreme Court striking down the individual mandate will restrict access to healthcare. Actually, simply implementing the 2,700 page law has spiked premiums by up to 30 percent and encouraged young people to avoid full plans, all while recent college grads face glum job prospects.

On the road to the highest court in the land, a lower judge upholding the mandate wrote that electing not to participate in the insurance market is a “mental activity” and therefore subject to regulation. Apparently the Constitution protects Free Speech but not free thought. Forget trains and steamships — interstate commerce is now regulating your neurons.

Perhaps this sounds drastic, but I worry that the Constitution will have lost all meaning if the Court sides with the mandate. I’d rather progressive lawyers scrap the Constitution all together than treat it as an endlessly pliable piece of putty. When asked if the ACA might set a precedent for mandating broccoli-consumption during a back-and-forth in a lower court, Deputy Assistant Attorney General Beth Brinkmann answered, “it depends.” If our country has come so far as to legitimately contemplate salad bar dictums, the original American framework for limited government is all but lost. Sadly, I worry that when the Constitution “lives,” the careful experiment in checks-and-balances behind the document itself dies a sad death.

Danielle is a sophomore. You can reach her at dcharet1@swarthmore.edu.

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