Why the Patient Protection and Affordable Care Act Should be Found Constitutional

While the Supreme Court considers appeals regarding the Patient Protection and Affordable Care Act (PPACA) – which some pro and con now call “Obamacare” for different reasons – we citizens can apply our own common sense to the question.   When we do, we see that, unless this Court engages in rampant judicial activism driven by political ideology, they should uphold the act.

Consider these portions of the US Constitution:

Article I The Legislative Branch

Section 8 – Powers of Congress

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

And; 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.

Look at the second of the powers listed: To regulate Commerce  “among the several States….,” in other words, “interstate commerce.”  Is buying and selling health care insurance interstate commerce?  Seems pretty clear that it is since customers buy coverage from nation-wide companies.  Is buying and selling health care itself – paying the doctors, hospitals, drug companies, etc. to care for us – interstate commerce?  Again, it surely is, as the providers, the medicines and the equipment come from all over the world.

Look at the last of the powers listed, the power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers….”  Under this section, Congress is authorized to enact detailed standards and requirements “necessary and proper” to accomplish their goals.  We should not be surprised the act takes up two thousand pages and has to be phased in.  It’s a big deal benefiting millions of Americans and something 70% of us asked Congress to do in 2008.

So, how did Congress choose to enforce a requirement that everyone obtain health insurance coverage?  Read the first of the enumerated powers:  “The Congress shall have Power To lay and collect Taxes….”  They chose to enforce PPACA through the tax code.  The “individual mandate” is actually in 2 parts of the act.  The first part says everyone must buy insurance and the second part says that, if they don’t do so, they will have a penalty added to their taxes.  No one goes to jail or faces criminal or civil penalties.  And if we are unable to pay for the insurance, assistance in getting good coverage will be provided.  By the way, the “individual mandate” has no effect whatsoever on people who have health insurance – over 60% of the population.

With authority to tax, Congress could have taken other routes in assuring health care that would also be constitutional. Congress could have simply left out the first part of the individual mandate and left in place the tax penalty clause to have exactly the same effect. Alternatively, they could have just raised everyone’s taxes to fund a single-payer insurance program like Medicare and made it available to everyone. Either way, the authority of the government to lay and collect taxes and thus enforce the mandate is provided in the Constitution.

Regarding the requirement to purchase insurance from private companies, government often requires that we pay for certain things we may not want to purchase – like care insurance we may never use.  Intuitively we know that health care isn’t the same as cars. Virtually, all of us will at some time need health care, yet we don’t know in advance when and what we will need; and at the time of need we likely won’t be able to pay out of pocket.  So we must pre-pay for some unknown but virtually certain need.  Those of us who don’t pay are costing those of us who do over $1,000 on average per year to cover their care. There’s evidence in the questions asked by the Supreme Court justices, that they understood how this market works and why everyone has to pay so everyone is covered.

Finally, in previous decisions, the Supreme Court has asserted its authority to rule on the constitutionality of legislation, a claim unchallenged by Congress and the President. However, the Court also has ruled that acts of Congress are presumed to be constitutional because House and Senate members are elected by the people and take the same oath of office the justices do to uphold the Constitution of the United States.  The Legislature is a branch of government coequal with the Supreme Court; thus the Court has recognized that ruling legislation unconstitutional “…frustrates the intent of the elected representatives of the people.”  The Supreme Court has previously upheld many interstate commerce and tax laws. If they now were to rule PPACA unconstitutional it would call into question other programs (like Medicare) that have long provided “…for the common defence and general Welfare of the United States…”

An “activist court” steps beyond its proper authority by ignoring the actual wording of the Constitution and ignoring previous court decisions in order to write its own laws based on its own ideology.  Odds are good that a majority of the members of this Court know both the Constitution and the previous decisions of their Court. When they were confirmed before the Senate they all testified under oath that they would follow “stare decisis” and abide by the rulings of previous Courts.  Thus it would be an extremist and activist court that failed to uphold PPACA.

By the way, if you think PPACA erodes your individual freedom, consider how free you’d feel ill, aged or disabled and unable to get care because you didn’t have insurance or your insurer had dumped you.  A whole other article could be written on the “powers” individuals have already or will gain from “Obamacare.”  It’s likely a majority of the Supreme Court justices know this as well and are reluctant to take those away from the people.


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