Obamacare Both Unnecessary and Improper

By SHARE

Congress exercised unprecedented and unbounded power in passing Obamacare. Although Congress has the power to regulate commerce between states, it does not have the power to order commerce into existence so it can regulate it. By compelling Americans to purchase health insurance, this is precisely what the individual mandate does.

The government's arguments focus on how the court has expanded Congress's commerce power through the Necessary and Proper Clause, which allows Congress to pass laws necessary and proper to regulating commerce. Too often it is forgotten that the Necessary and Proper Clause augments and limits congressional power.

What are those limits? Previous decisions based the Necessary and Proper Clause all concerned people who actively did something to enter Congress's jurisdiction. The uninsured, however, are inactive and have done nothing to come under Congress's power. This "activity/inactivity" distinction is crucial for two reasons: 1) it provides the limit of "necessity" on Congress's power; 2) it provides the limit of "propriety."

[See a collection of political cartoons on healthcare.]

In two cases that defined the limits on what is "necessary" to Congress's power, the Supreme Court articulated a clear, judicially administrable line: Laws that do not touch "economic activity" are impermissible because they are not a "necessary" extension of the commerce power. The virtue of a clear limit based on "economic activity" is that it does not involve the courts in micromanaging Congress's decisions, something they cannot and should not do.

Now, the government asks the Supreme Court to do just that: to analyze Congress's determination that, in this special instance, the inactivity of not purchasing healthcare is an "economic activity." They argue that the decision not to purchase healthcare is equivalent to the economic activity of shifting the costs onto others. They say this despite conceding that only 37 percent of the uninsured's healthcare expenses are cost-shifted as "uncompensated care," or about 1.9 percent of our total healthcare economy.

Finally, this law is not only unnecessary, it is improper. The power to force someone to give businesses money is incredibly attractive and dangerous. Rather than suffering the political liability of raising taxes, Congress can force citizens to cross-subsidize each other. This is precisely what Congress did here: It avoided the above-the-board taxation and clear budgeting in order to hide the true costs of the law. For this reason, the law is an "improper" use of the congressional power that violates, in the words of Chief Justice John Marshall, "the letter and spirit of the constitution."

Trevor Burrus

About Trevor Burrus Legal Associate at the Cato Institute

Tags
Obama administration
Supreme Court
health care
health care reform

Other Arguments

#1
2,025 Pts
Much More Than Politics at Stake

No – Much More Than Politics at Stake

Ethan Rome Executive Director of Health Care for America Now

#2
1,952 Pts
Constitution, Court's Precedent on Affordable Care Act's Side

No – Constitution, Court's Precedent on Affordable Care Act's Side

Ian Millhiser Policy Analyst at the Center for American Progress

#3
1,945 Pts
Striking Down the Affordable Care Act Would Be Unconscionable

No – Striking Down the Affordable Care Act Would Be Unconscionable

Ron Pollack Founding Executive Director of Families USA

#4
1,936 Pts
Founding Fathers Would Approve of National Healthcare Policy

No – Founding Fathers Would Approve of National Healthcare Policy

Elizabeth B. Wydra Chief Counsel for the Constitutional Accountability Center

#5
-1,889 Pts
The Individual Mandate Is Unconstitutional and Corrupt

Yes – The Individual Mandate Is Unconstitutional and Corrupt

Phil Kerpen Vice President for Policy at Americans for Prosperity

#6
-1,924 Pts
Individual Mandate Goes Against Basic Freedom and Liberty

Yes – Individual Mandate Goes Against Basic Freedom and Liberty

Hans A. Von Spakovsky Senior Legal Fellow at the Heritage Foundation

#8
-1,976 Pts
Rick Santorum: Obamacare Means Unlimited Government

Yes – Rick Santorum: Obamacare Means Unlimited Government

Rick Santorum Republican Candidate for President of the United States

You Might Also Like


See More