The United States Supreme Court is considering whether the massive health care overhaul known as "Obamacare" passes constitutional muster. Here's what you need to know about the challenge, the defense, the mixed court decisions so far — and what the Constitution actually says.
"The constitutionality of a mandate to maintain insurance was subject to serious question long before Congress enacted the [Affordable Care Act]. When the concept first arose in the early 1990s, the Congressional Budget Office (CBO) informed Congress that “[a] mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action.”
"The minimum coverage provision [the individual mandate] is integral to the Affordable Care Act’s insurance reforms. Those reforms are part of the Act’s broad framework of economic regulation and incentives designed to address the terms on which health insurance is offered, rationalize the timing and method of payment for health care services, expand access to health care, and reduce shifting of risks and costs. That framework builds upon decades of federal involvement in this enormous and highly regulated segment of the national economy."
The Text - What the Constitution Says
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives…
The Commerce Clause – Article I, Section 8, Clause 3
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
The Necessary and Proper Clause – Article 1, Section 8, Clause 18
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
The Mixed Decisions: The Federal Appeals Court Rulings
- Individual Mandate Upheld: The Decision in the D.C. Circuit Court of Appeals, 11/8/2011
- Challenge Deemed Premature: The Decision in the 4th Circuit Court of Appeals in Richmond, 9/8/2011
- Individual Mandate Rejected: The Decision in the 11th Circuit Court of Appeals in Atlanta, 8/12/2011
- Individual Mandate Upheld: The Decision in the 6th Circuit Court of Appeals in Cincinnati, 6/29/2011
What People Are Saying: Commentary Reading List
The main argument that opponents of the health-care law have come up with is that the mandate regulates economic inactivity—i.e., not buying insurance—and the Commerce Clause allows only the regulation of economic activity. In the first appellate review of the law, last summer, the Sixth Circuit demolished that argument.
— Jeffery Toobin in The New Yorker
The challengers can point to no Supreme Court precedent striking down a similar federal mandate, but that’s only because Congress has never previously enacted such a mandate. The mandate is unprecedented, and the 26 states challenging the law attempt to turn that fact in their favor.
— Adam J. White in The Weekly Standard
The power to compel a private individual to engage in commerce with a private corporation is not lesser than the power to regulate voluntary commerce; it is a far greater power.
— Gary Lawson and David B. Kopel in The Yale Law Journal Online
We are fighting here over a constitutional metaphor—the regulation of idle citizens—and it's a fascinating conversation, to be sure. But having this discussion is not the same as interpreting constitutional law. Judges who are comfortable referencing Tea Party talking points and Fox News arguments hint at real changes in the role of the judiciary, and signal the possibility that the lines between law, politics, and the media may be blurred for good.
— Dahlia Lithwick in Slate