Health Care, Broccoli, and a Constitutional House of Cards

Reading Dalia Lithwick's write-up of yesterday's oral arguments before the Fourth Circuit Court of Appeals on the constitutionality of the Patient Protection and Affordable Care Act (PPACA, a.k.a. the federal health care reform law or ObamaCare), I was really struck by a chain of reasoning advanced by Solicitor General Neal Kumar Katyal. Lithwick reports that Katyal essentially offers up the party line that PPACA sits on well-settled constitutional ground. The aggregate effects of individual choices regarding health insurance on interstate commerce permit Congress to regulate those choices. However, he actually says much more than that.

Acting Solicitor General Neal Kumar Katyal, defending the ACA on behalf of the Obama administration, quickly tries to poke a hole in the argument that the law mandates "inactivity." "It is almost a universal feature of our existence that we do use health care," Katyal says. The activity here, he argues, "is participation in the health care market." He notes that providing health care to the uninsured costs $43 billion per year, adding $1,000 to every family's annual health care premiums.
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Katyal then dismisses the argument that a government that can force you to purchase health insurance can also force you to buy from General Motors: "You can't show up at a General Motors lot and drive away and stick the bill to your neighbor," he says. The panel appears more than persuaded. Davis talks of the need for "practical" solutions to problems of this scope.

There are two constitutional justifications for PPACA in Katyal's argument. The first is that near universal participation in the marketplace for health acre justifies Congress's efforts to legislate individual behavior that influences that market under the Commerce Clause. The second is that the public costs of providing health care to the uninsured ---both in terms of direct public expenditures and indirect costs born by other consumers of health care---justify federal actions to reduce those costs. Both imply functionally limitless power under the Commerce Clause.

Katyal's first claim is that PPACA's regulation of individual activity is constitutionally valid under the Commerce Clause due to one's probable prospective use of health care and the corresponding burdens placed on the health care system. By that logic, any individual choice that reasonably corresponds to one's prospective consumption of health care would be subject to congressional control. Individual choices about purchasing health insurance, getting an annual physical, exercising, smoking cigarettes, using a tanning bed, eating vegetables, being circumcised, or practicing safe sex all correspond to aggregate burdens placed on the health care marketplace. If the only tests of limitations of congressional power under the Commerce Clause is the presence of aggregate effects on an interstate marketplace, then there is, in practice, no limit to what Congress may regulate.

Katyal's second claim is that PPACA is constitutionally justified as an effort to control the public costs, i.e. direct public expenditures and indirect increases in prices paid by other consumers, associated with providing health care to the uninsured. This argument is a house of cards. The features of the health care system that socialize the costs of providing care to the uninsured are generally created by Congress. Congress mandates the kinds of health care benefits available through Medicare, Medicaid, CHIP, etc. and which health care services must be provided to people regardless of their ability to pay for them. The shared public costs (direct and indirect) of caring for the uninsured didn't appear out of thin air. Congress created them and structures them. By Katyal's reasoning, Congress can create its own constitutional justification for any policy it desires by creating a regulatory scheme that socializes some cost related to the desired policy goal.

Either of these result is preposterous under a constitutional system of limited and enumerated powers and dangerous to individual liberty. Each is a house of cards, claiming enormous federal powers on the foundation of precarious constitutional reasoning. Previous Supreme Court decisions permitting extensive regulatory schemes in other domains of economic activity are distinguishable by the increased scope and intimacy of personal conduct subject to federal regulation in the domain of health care. As I have written here previously:

Just because the Commerce Clause permits Thing 1 and Thing 2 does not mean that it must also permit Thing 3 as long as it falls on the same line as 1 and 2.  Requiring people to spend their money on a private good sold only by a relatively small number of government approved and regulated firms is different than taxing workers to provide a public benefit or social service. 

By random draw, the panel hearing the current pair of challenges to the PPACA in the Fourth Circuit is comprised of three Democrats, a Clinton appointee and two Obama appointees. So, it is likely that the judges will be unsympathetic to claims about the limited nature of federal power. The result in the Court of Appeals, however, is likely to be only a prelude to a ruling by the Supreme Court.