I have a piece up at the Prospect about the obvious constitutionality of the Affordable Care Act. In particular, the “activity/inactivity” distinction cooked up by conservatives to get the ACA ruled unconstitutional 1)has no basis in the text of the Constitution or Supreme Court precedent and 2)is particularly inapplicable in the context of health care:
The first problem with the argument is the assumption that people without insurance are choosing not to participate in the market for health care. This argument might have some validity if we lived in a libertarian dystopia in which people without health insurance were left to die in the case of a medical emergency. But this is not the case. As the administration brief points out, “for decades, state and federal laws—reflecting deeply rooted societal values—have required emergency rooms to stabilize patients who arrive with an emergency condition, and common-law and ethical duties restrict a physician’s ability to terminate a patient-physician relationship.” The uninsured consumed nearly $120 billion in medical services in the last year for which there is good data (2008). People who go without medical insurance, then, are not choosing to exclude themselves from the health-care market in any meaningful sense; as the Obama administration brief reads, “[i]ndividuals without insurance actively participate in the health care market, but they pay only a fraction of the cost of the services they consume.” Not only is this free riding not some kind of constitutionally protected liberty, it represents exactly the kind of collective-action problem that the commerce clause was designed to give the federal government the ability to address.
Another point worth adding is that people making the ad hoc arguments about the unconstitutionality of the ACA have claimed that the regulation of “inactivity” is especially dangerous because it lacks a “limiting principle” — allegedly, if the government can regulate your “inactive” choice to let taxpayers pay your emergency medical care it can regulate anything. Leaving aside the fact that the argument is specious on its face, a limiting principle of course remains in place — U.S. v. Lopez. In Lopez, nothing direct economic or involving interstate markets was involved, and Congress provided no evidence that there were substantial indirect economic effects or that states were incompetent to deal with the problem. With respect to the ACA, conversely, the regulation is not merely rationally related to but essential to a broader regulatory framework that is almost universally conceded to be constitutional, and health insurance presents potential collective action problems that states would be unable to solve in light of federal action to end discriminatory insurance company practices. Upholding the ACA would do nothing to undermine the “limiting principle” actually established by the Rehnquist Court.