THE ISSUE: The U.S. Supreme Court this week heard an unprecedented three days of arguments on the constitutionality of the Patient Protection and Affordable Care Act. The justices will decide by June whether the legislation, which includes a requirement that virtually every American buy health insurance by 2014 or pay a penalty, passes constitutional muster.
Is the 'individual mandate' of health care reform constitutional?
Ben Boychuk: No!
Obamacare's individual mandate is unprecedented. Worse as the plaintiffs seeking to overturn the mandate argued in their brief to the Supreme Court and again in their oral argument Tuesday it is "unbounded."
That means there is no practical or principled way to maintain the mandate without giving Congress unlimited authority to impose other mandates. This is not what the framers of the Constitution envisioned when they set out to establish what James Madison called a "government of limited and enumerated powers."
What could stop Congress from forcing Americans to buy anything a partisan majority deemed necessary under the Constitution's Commerce Clause? Solicitor General Donald Verrilli struggled mightily to offer a coherent answer.
Perhaps because there isn't one.
It's one thing to say, as the Supreme Court has done many times over the decades, that Congress may control how Americans may produce, distribute and consume certain goods think of alcohol, tobacco and firearms.
But it's quite another to say, as Congress attempts in the Affordable Care Act, that the legislative branch can use the Commerce Clause to bludgeon Americans into engaging in economic activity that people have, for whatever reason, chosen to avoid.
Remember, of the 40 million or so Americans who are uninsured, about half of them are people between the ages of 18 and 35 who have decided that spending more on insurance than they are likely to consume simply makes no sense.
Supporters of the individual mandate argue that health care is "different" from other forms of commerce. As the 11th U.S. Circuit Court of Appeals noted in its August decision, however, the government's position "amounts to an argument that the mere fact of an individual's existence substantially affects interstate commerce, and therefore Congress may regulate them at every point of their life."
The mercurial Anthony Kennedy may or may not come down against the individual mandate, but he asked the key question.
"Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed," Justice Kennedy inquired. "If that is so, do you not have a heavy burden of justification?"
When a reporter in 2009 asked then-House Speaker Nancy Pelosi essentially the same question, where the Constitution grants Congress the authority to impose an individual mandate, she replied, "Are you serious? Are you serious?"
Evidently, Congress did not think it needed a reason beyond "it must be so." That's hardly good enough, which is why the mandate is unconstitutional.
Ben Boychuk is associate editor of the Manhattan Institute's City Journal. (www.city-journal.org/california)
Pia Lopez: Yes!
From the 1791 law creating the Bank of the United States to the 1964 Civil Rights Act, Congress has passed "unprecedented" laws. Novelty does not make a law unconstitutional. The U.S. Constitution clearly gives Congress the power to "regulate Commerce among the several States." No one seriously denies that health care and insurance markets involve interstate commerce.
If a majority on the U.S. Supreme Court strikes down the individual mandate or the entire Affordable Care Act, it will be a radical act of judicial activism. The high court from 1937 to 1994 did not overturn any law for overstepping Congress's commerce power and since then only two laws unrelated to economic activity.
Ben wrongly assumes that the uninsured have "chosen to avoid" health coverage, specifically mentioning 18- to 34-year-olds.
A national poll conducted by Lake Research Partners and Bellwether Research & Consulting in fall 2011 found that only 7 percent of young men and 3 percent of young women do not want to be insured. Most said they were uninsured because they could not afford coverage, their employer did not offer it or they had been denied due to a pre-existing condition, precisely what the Affordable Care Act seeks to change.
Ben also presumes that the few who have "chosen to avoid" coverage should get a pass as free riders. These Russian roulette players can't know if they will get hit by a bus or disease, so they shift the cost of their care to the rest of us.
The uncompensated care for the uninsured totaled $43 billion in 2009, representing a whole lot of economic activity.
Regulating health insurance is different from other commerce. As Stuart Butler of the Heritage Foundation wrote in 1989: "If a young man wrecks his Porsche and has not had the foresight to obtain insurance, we may commiserate but society feels no obligation to repair his car. But health care is different. If a man is struck down by a heart attack in the street, Americans will care for him whether or not he has insurance."
Nobody is being compelled to enter commerce; they're inevitably in it.
Those who oppose the law actually argued before the justices Tuesday that Congress under its commerce power could require individuals to buy insurance at the point they ask a doctor or hospital for medical care but not in advance. Isn't that still a mandate? In any case, no insurance system, which aims to pool risks, could possibly work that way. These people are not serious.
The court should adhere to its 75-year history of self-restraint on Congress's commerce power and uphold the law. How the nation should remedy gaping holes in health coverage is an issue of public policy where lawmakers and voters of good will differ. The appropriate remedy here is political persuading Congress to enact preferred solutions.
Pia Lopez is an editorial writer at The Bee.