Patient Protection and Affordable Care Act

by Nicole Flatow

On March 26, American Constitution Society President Caroline Fredrickson stood up to Bill O’Reilly and stood by the constitutionality of the Affordable Care Act on Fox News’ “The O’Reilly Factor.”

She countered his “polemic exaggeration” with the “calm and factual,” even explaining that the penalty for not purchasing health care is justified under the power to tax.  

O’Reilly, exasperated by his inability to match Fredrickson’s factual assertions, concluded with his prediction that the law would be struck down by the Supreme Court.

“If I’m wrong,” he said, “I will come on and I will play your clip, and I will apologize for being an idiot.”

By Rebecca L. Brown, Newton Professor of Constitutional Law at the USC Gould School of Law

During Tuesday’s argument, Justice Scalia asked whether the individual mandate, even if “necessary,” was also “proper.” He may well have had good reasons to focus on this language, and the Necessary and Proper Clause, to which it refers.

In 2005, Justice Scalia wrote separately in a Commerce Clause case to emphasize that conduct can be regulated if it is “an essential part of a larger regulation of economic activity….”  He added, “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.” The question in the case, Gonzales v. Raich, was whether the federal drug laws could reach the cultivation and possession of marijuana for personal use as authorized by state law. Justice Scalia wrote that, when the federal government puts in place a comprehensive regulatory scheme that falls within the power to regulate interstate commerce (such as the interstate drug laws) then it may also impose additional requirements, even over matters that it could not regulate in isolation (such as wholly intrastate, non-commercial activity, like the growing of marijuana)—if those additional requirements are “necessary and proper” to effectuate the larger federal scheme.   

Many of us read that plausible analysis to suggest an analogous approach to the Affordable Care Act. Congress has unquestioned authority to regulate the interstate and commercial matters of health care and insurance. In turn, as Justice Scalia made clear in Raich, additional rules that are necessary and proper to the functioning of the overall system of regulating those markets can be constitutionally adopted by Congress-- even if those additional rules might be of questionable validity if passed in isolation. 

There is no dispute that the individual mandate is necessary, even essential, to effectuate the congressional policy of requiring insurers to offer coverage without regard to pre-existing conditions. Without the individual mandate, people would be free to wait to buy insurance until they needed expensive medical care, which would undercut the role of insurance as a pooling of risk. Assuming, then, that Justice Scalia would maintain consistency with his prior views, many thought that he could be counted on as a vote to uphold the individual mandate.

But, apparently realizing the import of his prior opinion, Justice Scalia on Tuesday laid the groundwork for backing away from it. While conceding that the individual mandate is “necessary” to the federal scheme, he questioned whether it is also “proper.” Why might it not be proper? In an exercise of utterly circular reasoning, Justice Scalia suggested that it might not be “proper” because it goes beyond the limits of Congress’s limited powers.