We talked yesterday about the Supreme Court’s consideration of the Affordable Care Act, and the conservative justice’s search for a “limiting principle.” By way of a follow-up, it’s worth noting that if the right is still looking for one, there are plenty of options.
To briefly recap — yesterday’s post may not have been entirely clear — conservatives are worried about a slippery slope. Congress has the authority to regulate interstate commerce; the American health care system is interstate commerce; and the Affordable Care Act regulates the health care system, so the law — and the individual mandate that makes the law function — is constitutional.
But is there a limit? In other words, if consumers can be compelled by Congress to purchase health insurance as part of a regulated market, the right is unnecessarily fearful that consumers can also be compelled to purchase vegetables, gym memberships, and anything else lawmakers might feel like requiring.
If the mandate is kosher, the argument goes, the court will need to set some sort of “limit” — clarifying why an insurance requirement is acceptable, but a broccoli requirement is not.
Of course, for more than two centuries, Supreme Court justices have come up with all kinds of tests, standards, and limits, making this all rather pointless. It’s not the Solicitor General’s job to tell the justices what their limiting principle should be; it’s the justices’ job to come with the principle if they feel like one is necessary. (The ACLU didn’t write the Lemon Test, for example; the Burger Court did.)
But if there are five justices looking for a way to approve an insurance mandate without a gym-membership mandate, they can choose from a menu of “limiting principles” that are readily available. To uphold this law would not give Congress unfettered power to require us to eat granola, purchase electric cars or join health clubs. Participation in the markets for those products is not inevitable, nor does one person’s choice not to purchase such products impose substantial and foreseeable costs on others because he will be able to get the product for free even if he doesn’t buy it. Upholding the individual mandate would simply establish that where a national market is the victim of such a free-rider problem, Congress may address it as part of its general authority to regulate that market. Jack Balkin came up with three more perfectly good ones, and concluded, “In sum, without giving Congress unlimited powers under the Commerce Clause, the Court can uphold the mandate under the moral hazard/adverse selection theory, the interstate externalities theory, or the ‘It’s a tax, stupid!’ theory. Tony Kennedy, John Roberts, are you listening?” We’ll find out in June.
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