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March 25, 2012 | Posted By David Lemberg, M.S., D.C.

On Monday, March 26th, 2012, the Supreme Court will begin hearing arguments on National Federation of Independent Business v. Sebelius and two linked cases, the lawsuits against the Patient Protection and Affordable Care Act (ACA; signed into law by President Obama on 3/23/2010). The court announced on February 21st that it would hear 6 hours of arguments over 3 days, an historic and unprecedented amount of time. The last time the Supreme Court heard more than 2 hours of arguments was when it considered the McCain-Feingold campaign finance law in 2003.

Ever since Obama took office, the avowed purpose of the opposition party has been to limit the president to one term in office, regardless of the consequences to the nation as a whole. It's no surprise that passage of the ACA has generated a fierce backlash among the "red state" crowd. The results of the severe congressional intransigence and obstruction toward any legislation put forward by the Obama administration include a 14% approval rating, which ties the lowest approval rating for Congress ever recorded.

At issue in the cases before the Supreme Court is the constitutionality of federal involvement, interference, or interposition (depending on who's doing the interpreting) regarding activities of private citizens and activities of the states. The question of constitutionality of the ACA relates specifically to the Commerce Clause (U.S. Constitution Article 1, Section 8, Clause 3). The Commerce Clause states "Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes". As with all clauses of the Constitution, the Commerce Clause must be interpreted and applied. The Supreme Court is the final arbiter and interpreter of all such applications, declaring the constitutionality (or lack thereof) of congressional and state legislation.

The Affordable Care Act legislates three things. First, the ACA establishes an "individual mandate" which requires most citizens (those whose income is above the threshold for filing federal income tax) to maintain health insurance or pay a financial penalty. Second, the act authorizes the creation of insurance exchanges (mostly state-administered) by which individuals and small businesses may purchase health insurance policies. Importantly, the act specifies that insurance companies may not charge higher premiums or deny coverage to those who have preexisting medical conditions. Insurance companies are limited in their ability to cancel policies and they may not impose annual caps on benefits. Third, the act extends Medicaid eligibility to 16 million people by expanding the availability of the program to those with incomes up to 133% of the poverty level. States must comply with the expansion or risk losing all federal Medicaid monies.

The challenges to the ACA state that the federal government has exceeded its constitutionally enumerated powers. The Tenth Amendment states "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The challenges suggest that the ACA attempts to wield a federal power that does not exist under the Constitution and attempts to interfere with powers appropriately "reserved" to the states and to "the people". The challenges assert that it is the right of a citizen, rather than a prerogative of the federal government, to determine whether she will purchase health insurance. The challenges also assert that the federal government cannot dictate how a state conducts its Medicaid program.

The federal power to regulate commerce "among the several states" has been challenged frequently. Wickard v. Filburn is landmark case decided in 1942 which bears directly on the individual mandate section of the ACA. The Supreme Court's majority (8-0) opinion was written by Justice Robert H. Jackson (who several years later served as chief U.S. prosecutor at the Nuremberg war crimes trials). Justice Jackson provided a history of Supreme Court decisions related to the Commerce Clause, specifically citing the Shreveport Rate Cases. In Shreveport the court held that although railroad rates were an intrastate matter and fixed by authority of the state, the federal government could revise those rates "because of the economic effects which they had upon interstate commerce". Further, Justice Jackson cited United States v. Wrightwood Dairy, which held that "the power of Congress over interstate commerce is plenary and complete in itself" and "may be exercised to its utmost extent".

Such broad interpretations of the powers available to the federal government under the Commerce Clause date back to Gibbons v. Ogden, a case decided in 1824. Chief Justice John Marshall (appointed by President John Adams in 1800) wrote the majority opinion (8-0). The chief justice emphasized that "our Constitution [is] one of enumeration, and not of definition". Regarding "strict construction", a term frequently used by the current opposition party and conservatives generally when they intend to oppose federal legislation, Chief Justice Marshall wrote that "we cannot perceive the propriety" of "narrow construction which would cripple the government and render it unequal to the object for which it is declared to be instituted". Regarding the power enumerated in the Commerce Clause itself, Chief Justice Marshall wrote "It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution".

At issue in Wickard v. Filburn was whether the federal government had the power to regulate how much wheat Mr. Filburn grew on his farm. The Agricultural Adjustment Act (1938) had established limits on wheat production in an attempt to stabilize wheat prices during the Depression. Filburn claimed that such interference would move the nation toward a centralized government and "lead to absolutism by successive nullifications of all Constitutional limitations".1 Concerning Mr. Filburn's farming activities, Justice Jackson wrote "though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce". Thus, the power of the federal government to require individuals to purchase health insurance may be construed in the same light, i.e., the enumerated power of Congress to regulate commerce.

It is appropriate to address the motives of opponents of the ACA in raising the question of constitutionality. The primary focus of elected officials should be the welfare of their constituents. It is patently obvious that the U.S. health care "system" is badly broken. We are the only developed nation in the world whose primary means for implementing health care is that of the private marketplace. Fifty-nine million Americans do not have health insurance because they cannot afford it. In a brief two years, the ACA has resulted in more Americans receiving life-saving preventive care, more affordable prescription drugs for senior citizens (saving $3.2 billion for 5.1 million older adults), and millions of young adults being able to remain on their parents health insurance until age 26.

The ACA's individual mandate will benefit all Americans, not only those presently in need of health care coverage. For example, utilization of emergency room services should drop dramatically, saving taxpayers billions of dollars. Utilization of primary care and preventive services will increase, resulting in a higher general level of health and a concomitant increase in productivity and participation in family and community activities. As the general welfare of citizens improves, the overall welfare of society improves. Social welfare makes economic sense.

The Affordable Care Act should be a legislative slam dunk. Obstructionists need to consider the health and well-being of the United States itself or resign their posts.

1Chen J: Filburn's Legacy. Emory Law J 52(4):1719-1769, 2003

The Alden March Bioethics Institute offers graduate online masters in bioethics programs. For more information on the AMBI master of bioethics online program, please visit the AMBI site.

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BIOETHICS TODAY is the blog of the Alden March Bioethics Institute, presenting topical and timely commentary on issues, trends, and breaking news in the broad arena of bioethics. BIOETHICS TODAY presents interviews, opinion pieces, and ongoing articles on health care policy, end-of-life decision making, emerging issues in genetics and genomics, procreative liberty and reproductive health, ethics in clinical trials, medicine and the media, distributive justice and health care delivery in developing nations, and the intersection of environmental conservation and bioethics.
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