“In sum,” they conclude, “the individual mandate is breathtaking in its expansive scope. It regulates those who have not entered the health care market at all. It regulates those who have entered the health care market, but have not entered the insurance market (and have no intention of doing so). It is overinclusive in when it regulates: it conflates those who presently consume health care with those who will not consume health care for many years into the future. The government’s position amounts to an argument that the mere fact of an individual’s existence substantially affects interstate commerce, and therefore Congress may regulate them at every point of their life. This theory affords no limiting principles in which to confine Congress’s enumerated power.”
THE “HEALTH CARE IS SPECIAL” CANARD
Dubina and Hull do an excellent job of pointing out the constitutional irrelevance of the administration’s argument that the mandate is necessary because health care is somehow unique. (Or, to put it more precisely, that health care is uniquely unique.) Health care is unique, says the administration, because (1) everyone eventually consumes it; (2) our need for health care is unpredictable; (3) it’s expensive; (4) Congress requires hospital emergency rooms to treat everyone, regardless of ability to pay; (5) that requirement leads to cost-shifting.
As the judges rightly point out, who cares? “The first problem with the government’s proposed limiting factors is their lack of constitutional relevance. These five factual criteria comprising the government’s ‘uniqueness’ argument are not limiting principles rooted in any constitutional understanding of the commerce power.”
In addition, Dubina and Hull rightly point out that the uniqueness argument is factually false. “Virtually all forms of insurance entail decisions about timing and planning for unpredictable events with high associated costs. . . . Under the government’s proposed limiting principles, there is no reason why Congress could not similarly compel Americans to insure against any number of unforeseeable but serious risks.”
In addition, accepting the administration’s theory that health care is special means that “courts would sit in judgment over every economic mandate issued by Congress, determining whether the level of participation in the underlying market, the amount of cost-shifting, the unpredictability of need, or the strength of the moral imperative were enough to justify the mandate.”
IF CONGRESS CAN DO THIS, WHAT CAN’T IT DO?
Finally, we should discuss the judges’ reflections on the fundamental threat that the individual mandate poses to our constitutional order: If Congress can force us to buy a privately issued product, what can’t it do? Can’t it force us to buy broccoli, or even the New York Times? Notably, the judges don’t employ the rhetorical tactic of describing this “parade of horribles,” because the facts speak for themselves.
Dubina and Hull are blunt on this point. “At root, the [government] relies upon a convenient sleight of hand to deflect attention from the central issue in the case: what is the nature of the conduct being regulated by the individual mandate, and may Congress reach it?” The government goes out of its way to downplay the far-reaching implications of the mandate; hence the whole discussion about how health care is unique. “Accordingly, the government adroitly and narrowly re-defines the regulated activity as the uninsured’s health care consumption and attendant cost-shifting, or the timing and method of payment for such consumption.”
“Ultimately,” they write, “the government’s struggle to articulate cognizable, judicially administrable limiting principles only reiterates the conclusion we reach today: there are none. . . . This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them repurchase that insurance product every month for their entire lives. We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers.”