Rule of Law

Commentary: The Minimum Coverage Provision — Why Challengers Should Strike Out with the Roberts Court

Challengers to the constitutionality of the Affordable Care Act’s minimum coverage provision have a lot to be worried about as the U.S. Supreme Court prepares to hear arguments over three days at the end of March. The surprise? They need to worry about the conservative justices just as much as they do the more liberal members of the Court.

After all, it was none other than Justice Antonin Scalia who wrote in his Gonzales v. Raich concurrence that Congress “may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.” That pretty much dooms the claim of health care reform opponents that the failure to purchase insurance is noneconomic and thus not subject to regulation under the Constitution’s commerce clause. No one can seriously dispute that the Affordable Care Act as a whole is a “general regulation” of the interstate health services market, which comprises nearly 20 percent of our nation’s economy.

As for the minimum coverage provision being “necessary” to the ACA’s “more general regulation of interstate commerce”? In U.S. v. Comstock, Chief Justice John Roberts Jr. two years ago joined an opinion authored by Justice Stephen Breyer that affirmed the sweeping nature of the Constitution’s grant of power to Congress to use any “means that is rationally related to the implementation of a constitutionally enumerated power.” Whether one thinks the mandate is good or bad policy, it is difficult in good faith to say the minimum coverage provision is not “rationally related” to the indisputably valid regulation of interstate commerce contained in the rest of the Affordable Care Act. (Wondering where the Court’s swing vote, Justice Anthony Kennedy, is on this? He joined Justice John Paul Stevens’ majority opinion in Raich, which was even more sweeping than Scalia’s concurrence.)

The groundwork has been laid for conservative jurists to uphold the minimum coverage provision as constitutional. In rejecting separate challenges to the act, George W. Bush appointee Jeffrey Sutton of the U.S. Court of Appeals for the 6th Circuit and Reagan appointee Laurence Silberman of the D.C. Circuit provided compelling, conservative arguments for the provision’s constitutionality. There is good reason to think that some of the Supreme Court’s conservatives will follow suit.

After all, the conservative justices claim to be strict umpires for the text and history of the Constitution. And, as Silberman concluded in his ruling for the D.C. Circuit, there is “no textual support” in the Constitution for the challenges to the minimum coverage provision.

To the contrary, our Constitution’s text and history demonstrate that the national health care crisis — in which millions of Americans lack access to quality, affordable care — is the sort of national problem that the framers of our founding charter wanted the federal government to have the power to solve. Our Constitution was drafted in 1787 “in Order to form a more perfect Union” — both more perfect than the British tyranny against which the founding generation had revolted and more perfect than the flawed Articles of Confederation under which Americans had lived for a decade since declaring independence. George Washington and the other delegates to the Constitutional Convention shared a conviction that the Constitution must establish a national government of substantial power, in contrast to the extremely weak central government of the Articles, which was so dysfunctional that Washington thought it nearly cost us victory in the Revolutionary War.

In considering how to grant such power to the national government, the delegates to the Constitutional Convention adopted a resolution declaring that Congress should have authority “to legislate in all Cases for the general Interests of the Union, and also in those to which the States are separately incompetent, or in which the Harmony of the United States may be interrupted by the Exercise of individual legislation.” In the health care cases, state legislators from each of the 50 states, the District and Puerto Rico — among other voices from state and local governments — have told the Supreme Court that they cannot fix the country’s health care problem on their own and strongly support Congress’ involvement. Contrary to the challengers’ claims that upholding the minimum coverage provision will have “dire” consequences for our constitutional system of federalism, the ACA is a reflection of our nation’s vibrant, cooperative structure of government in which the federal government establishes national reform mechanisms when necessary and states are left free to innovate when appropriate.

Any Supreme Court justice who is faithful to the Constitution’s text and history, principles of federalism and precedent — including decisions authored or joined by some of the current conservative justices — should have no trouble upholding the minimum coverage provision as constitutional. To be sure, some supporters of the minimum coverage provision will worry that the conservative Justices’ presumed political opposition to the mandate will cloud their view — and there is always the possibility that Roberts’ and Scalia’s views on federal power will be less robust in a case that doesn’t deal with marijuana (Raich) or dangerous sex offenders (Comstock). But if these Justices follow precedent and simply call “balls and strikes” under the lights of the Constitution, it will be the challengers to the minimum coverage provision who strike out when the Court hands down its ruling this summer.

Elizabeth B. Wydra is chief counsel at the Constitutional Accountability Center. She represents more than 500 state legislators from all 50 States, the District of Columbia and Puerto Rico in the health care cases before the Supreme Court, and has filed briefs supporting the ACA’s minimum coverage provision and expansion of Medicaid.