THIS week, two years after President Barack Obama signed his US health reforms, known as Obamacare, into law, the central tenet of the legislation, whether the federal government can compel uninsured individuals to purchase private health insurance, came before the Supreme Court.
The administration claims that the so-called “individual mandate” is legal under terms of the constitution’s commerce clause, which empowers Congress to “regulate commerce… among the several States.” Ever since the Court ruled against the plaintiff in Wickard v. Filburn, the federal government has taken an elastic view of the commerce clause, interpreting it to cover any “activities that substantially affect interstate commerce.” In the case of Roscoe Filburn, the Ohio farmer exceeded wheat quotas and was found to have violated interstate commerce even though he was growing the wheat for personal consumption. This precedent was maintained in Gonzales v. Raich, where the Court criminalised home-grown medical marijuana.
The administration is now invoking the commerce clause to deal with the uninsured who receive free medical treatment but ultimately shift the cost burden to the insured. The President’s healthcare bill forces individuals to purchase insurance, providing subsidies for those in need of economic assistance. Those who don’t pay will be fined. The administration is pushing the unprecedented argument that it can regulate inactivity, drawing scorn from the “swing vote” Justice Anthony Kennedy and the more conservative justices on the court, with Chief Justice John Roberts enquiring whether the federal government could implement an individual mandate requiring “you to buy a cell phone.”
An alternative for the administration is to defend the mandate on the grounds that Congress has the power to “collect taxes… to provide for the… general welfare of the United States.” Given that the bill fails to describe the mandate as a tax, this only exacerbates concerns about the administration’s consistency. It’s also a major political problem. In 2009 the President emphasised that his reforms were “absolutely not a tax increase.” In addition, given that Obama campaigned in 2008 on a “firm pledge” to never implement “any form of tax increase” on individuals earning less than $250,000, such an argument may well imperil his re-election bid. With a final ruling from the Court expected in late June, the President will receive a painful reminder on the campaign trail of his most costly political endeavour. Alternatively, if the Court finds the mandate unconstitutional, the ruling could help to revitalise the President’s base with a message of unfinished business. Republicans are aware that Mitt Romney, who supported a mandate when governor, may not be the best messenger. But that’s not the point. All they are looking for is confirmation that the federal government is still one of enumerated powers.
Ewan Watt is a Washington DC-based consultant. You can follow him on @ewancwatt