Within a very good post on the consequences of today’s SCOTUS ruling, Adam Serwer writes:
In the court battle over Obamacare, the government had argued that the individual mandate—the part of the health care law that requires Americans to purchase health insurance or pay a fine—was constitutional because the Commerce Clause gives Congress the authority to regulate interstate commerce. The government’s lawyers said that without the mandate, the health care law wouldn’t work, and because not having health insurance substantially affects the health insurance market (i.e., it affects interstate commerce), it was okay to fine people for not buying insurance. Conservatives argued that the mandate was not really regulating commerce, but forcing people to engage in it. They claimed the Commerce Clause allowed Congress to regulate “activity” but not “inactivity”—a distinction found nowhere in the Constitution itself.
The “activity/inactivity” distinction went from being a laughable attempt to try to distinguish this case from the previous Raich ruling to a serious argument adopted by 5 of the 9 Supreme Court justices. But despite the fact that this ruling has weakened the Federal government’s powers under the Commerce Clause, this distinction between Raich case and the ACA is still imaginary.
In the Raich decision, a person growing a marijuana plant was automatically participating in interstate commerce, regardless of his/her “activity”. If a person grew a plant, harvested it, and consumed it entirely himself/herself, it was still considered part of interstate commerce. Their activity or inactivity with respect to any actual marketplace was never the issue, but the commodity itself. With health care, the same situation existed, except that it didn’t just cover a subset of the population. Every single person in America is potentially part of that market on any day – even if they desired not to be – and therefore most people looked at the decision in Raich and concluded that it was well with the Commerce Clause to require folks to either insure themselves or pay a penalty.
There are certainly a number of conservatives who’ve been consistent in their views on the Commerce Clause, and to some extent I’ve been swayed by their arguments. But the intellectual inconsistency of Scalia and Kennedy (and of course Rob McKenna) for supporting Raich, but fighting to have the ACA overturned is appalling.
Later in the post, Serwer also notes that the majority ruling that the mandate is a constitutional tax on individuals potentially leads to the infamous “broccoli scenario” being carried out through a tax. What’s stopping the Federal Government from imposing a tax penalty over any number of consumer choices? Serwer argues that this is a reason for liberals to breathe easier about progressives’ ability to craft good regulations in the marketplace, but I’m somewhat skeptical.
The aspect of this that concerns me the most is the shift from allowing for the regulation of systems and institutions to the regulation of individual behavior. Regulating individual actions is generally an ineffective way to regulate any system. Climate change is a great example. Trying to solve our climate crisis merely by using taxes to influence individual consumer choices isn’t going to have anywhere near the impact of being able to impose strong regulations on the industries that contribute to high CO2 levels in the atmosphere. We’re not anywhere near the point where this is a real legislation-inhibiting concern, but the current court seems inclined to push us in that direction.
I don’t want to be too negative about all this. I was relieved that the ACA was allowed to stand this morning. It certainly wasn’t perfect legislation, but it was a small first step towards moving us towards more cost effective health care in this country. And hell, this decision today – especially with its modified view of the Commerce Clause – might be reversed again the next time to court sees it. Especially if it involves allowing the feds to go after some potheads.