UNPRECEDENTED ASSERTION OF POWER
The Eleventh then turns to one of the key arguments against the individual mandate: that it represents an unprecedented attempt by Congress to regulate economic inactivity, namely the decision to opt out of the insurance market. Here, Judges Dubina and Hull make a broader point: that whether or not opting out of the insurance market is economic activity, there can be no doubt that the individual mandate represents an unprecedented assertion of federal power.
“The Supreme Court,” they note, “has always described the commerce power as operating on already existing or ongoing activity,” citing multiple passages from Lopez and Raich. But “the Court has never expressly held that activity is a precondition for Congress’s ability to regulate commerce — perhaps, in part, because it has never been faced with the type of regulation at issue here. . . . What the Court has never done is interpret the Commerce Clause to allow Congress to dictate the financial decisions of Americans through an economic mandate.”
They note that in 1994, when an individual mandate was first considered by Congress, the Congressional Budget Office stated that a “mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. . . . [Congress] has never required people to buy any good or service as a condition of lawful residence in the United States.”
Dubina and Hull then wield the knockout punch: “The fact that Congress has never before exercised this supposed authority is telling. . . . Few powers, if any, could be more attractive to Congress than compelling the purchase of certain products. Yet even if we focus on the modern era, when congressional power under the Commerce Clause has been at its height, Congress still has not asserted this authority. Even in the face of a Great Depression, a World War, a Cold War, recessions, oil shocks, inflation, and unemployment, Congress never sought to require the purchase of wheat or war bonds, force a higher savings rate or greater consumption of American goods, or require every American to purchase a more fuel efficient vehicle.”
They discuss problems that the government has had with flood disasters: Despite the fact that Washington has spent large sums of money on flood-disaster relief, “Congress did not require everyone who owns a house in a flood plain to purchase flood insurance. In fact Congress did not even require anyone who chooses to build a new house in a flood plain to buy insurance. Rather Congress created a series of incentives designed to encourage voluntary purchase of flood insurance. . . . Without an ‘individual mandate,’ the flood insurance program has largely been a failure.”
They then go on to point out that there are only four mandates applied to every citizen of the United States: “serving on juries, registering for the draft, filing tax returns, and responding to the census.” In particular, liberals have justified the individual mandate by arguing that, if Congress can require you to fight in a war, surely it can require you to buy health insurance. But Dubina and Hull point out that there is a significant difference between “directly interacting with the government” and “[entering] into a compulsory contract with a private company.” The draft survived many constitutional challenges, “primarily based on the long history of the draft both in the United States and [in] other nations,” and also the long-standing concept that the fundamental “obligation of the citizen [is] to render military service in case of need.”
The judges make another critical point: The law forces people to buy insurance now, because they might seek uncompensated care in the future. “Although health care consumption is pervasive, the plaintiffs correctly note that participation in the market for health care is far less inevitable than participation in markets for basic necessities like food or clothing.” The Supreme Court has “never had to address any temporal aspects of congressional regulation. However, the premise of the government’s position — that most people will, at some point in the future, consume health care — reveals that the individual mandate is even further removed from traditional exercises of Congress’s commerce power.”