Why the Supreme Court will be mistaken if it strikes down the “individual mandate”

SUMMARY
When discussing the constitutionality of the 2010 Affordable Care Act, lawyers, commentators, and Supreme Court Justices have regularly referred to “the uninsured.”  I argue that this is a conceptual and legal error: under a 1986 federal law, every individual already possesses a legally-enforceable right and thus an important kind of insurance. It follows from this that the individual mandate would force nobody to participate in a market in which he or she does not already participate. It thus becomes possible to affirm the constitutionality of the individual mandate, while holding (along with the conservative Justices on the Court) that there are “meaningful limits” to what Congress may or may not do under the Commerce Clause.

THE ARGUMENT: THERE IS NO SUCH THING AS “THE UNINSURED” –  WHY THE COURT WILL BE MISTAKEN IF IT STRIKES DOWN THE INDIVIDUAL MANDATE
A majority of Supreme Court Justices may have already decided that a central provision of the 2010 Affordable Care Act, the individual mandate, is unconstitutional. Indeed, Justice Anthony Kennedy, widely seen as the Court’s “swing vote,” wrote a concurring opinion in 1994 which seems to provide ample theoretical justification for invalidating the individual mandate. But if the Court follows Justice Kennedy’s reasoning and strikes down the individual mandate, it would be in error – for even if Justice Kennedy’s reasoning is sound, the Court would be overlooking the current legal significance of a federal law from 1986.
The 1986 law is relevant because of the way the Affordable Care Act was passed in 2010. When Congress passed this Act, it could have, without constitutional controversy, justified its authority for doing so under the taxing power given to it by the Constitution. In fact, Justice Kennedy, during oral arguments regarding the Act, made exactly this point, noting that Congress could have legitimately used its taxing power to raise revenue and institute a national, single-payer health service. Instead, in the midst of the anti-tax political climate of 2010, Congress opted to justify its passage of the Act by relying on its authority to regulate interstate commerce under the Constitution’s Commerce Clause. But reliance on the Commerce Clause has made the Act constitutionally suspect, for reasons anticipated by Justice Kennedy in 1994.
In a concurring opinion in the 1994 case,
United States v. Lopez, Justice Kennedy explained that the federalism envisioned by the Framers is imperiled when Congressional power under the Commerce Clause is expanded to the point where the “boundaries between the spheres of federal and state authority” become blurred. While Congress should be given “substantial discretion and control” to determine the proper distinction and balance of power between the federal and state governments, the judiciary must intervene when this balance is threatened and must recognize “meaningful limits” on what Congress may do under the Commerce Clause.
If Justice Kennedy’s reasoning is correct, it is easy to see what is constitutionally questionable about the individual mandate. Under the individual mandate, individuals who have not already purchased health care insurance would be required, under pain of penalty, to purchase it, and thus, it seems, would be required to enter into a market in which they do not already participate. If the individual mandate stands, it appears that Congress may force individuals to purchase any number of unwanted products, all in the name of regulating interstate commerce. The individual mandate must be struck down, it seems, if one is to avoid the conclusion that there are no “meaningful limits” on Congress’s power, under the Commerce Clause, to force individuals to enter into commercial activities in which they are not already participating.
But does the individual mandate really force anyone to enter into a market in which he or she does not already participate? The answer is “no,” since a 1986 federal law, the Emergency Medical Treatment and Active Labor Act (EMTALA), already gave every individual a basic form of health care insurance, and thus legally placed every individual within the market to be regulated by the Affordable Care Act. Under EMTALA, Medicare-participating hospitals (which make up the vast majority of all hospitals in the United States) are required to examine and, if necessary, treat “any individual” who comes to the hospital’s emergency room seeking care, regardless of the individual’s legal status or ability to pay. Under EMTALA, there is simply no such thing as “the uninsured.”
While EMTALA’s language focuses on hospitals and their legally-enforceable “duty to treat,” the existence of this duty entails a correlative, legally-enforceable “right to be treated.” One’s possession of basic health care insurance under EMTALA does not depend on one’s having acted affirmatively to acquire it; nor does it depend on one’s wanting to receive or having received any tangible benefit under it. An individual possesses basic health care insurance under EMTALA simply by virtue of the fact that he or she is a living individual who has been granted, as a matter of federal law and not just “social norms,” a legally enforceable right to compel any one of thousands of hospitals in the United States to provide basic medical treatment, when certain conditions are met. No doubt, the range of medical treatments that a hospital must provide under EMTALA is limited. But the possession of insurance is perfectly compatible with the existence of limits on what is or is not covered by such insurance.
In sum: it is possible to affirm the constitutionality of the individual mandate, while at the same time holding that Congress may not, under the Commerce Clause, force any individual into a market in which he or she does not already participate. The individual mandate does not coerce non-participants to begin participating in the market for health care insurance. That act of coercion already took place in 1986, when Congress, pursuant to its taxing power, passed EMTALA and effectively turned every individual into a possessor of basic of health care insurance, whether desired by the individual or not.

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