The Supreme Court's Health Care Ruling: Preserving the Individual as Sovereign, Rather Than Subject of Government

If the Affordable Care Act (ACA) had to be upheld by the Supreme Court, I am grateful that its survival turned on the line drawn by Chief Justice Roberts.  Chief Justice Roberts found the statute's individual mandate to purchase insurance –- a direct federal directive to take individual action rather than a regulation of preexisting individual action –- to falter when held against the Commerce Clause and the Necessary and Proper Clause.  Nonetheless, under Chief Judge Roberts's analysis, the mandate passes muster when alternatively conceived of as a tax (even though Congress and the President denied that the ACA included any tax increase).

Many other scholars, lawyers, and pundits, both on the Mirror of Justice and elsewhere, have and will comment further on the text, history, and precedents pertinent to the Commerce Clause and Necessary and Proper Clause challenges to the statute, as well as the practical implications of the ruling for health care and public policy into the future.

Reading the opinions in NFIB v. Sebelius, I instead found myself searching for the Court's guidance on a broader and deeper, even venerable, philosophical question that has persisted since the founding of the Republic (and earlier) -– the right and proper relationship of the individual to the State.  Resonating with me was a passage from the jointly-authored dissent (which actually was part of the majority that found the individual mandate beyond congressional power under the Commerce Clause).  In refusing along with Chief Justice Roberts to read the Commerce Clause as authorizing “the Federal Government to regulate all private conduct,” the four-justice joint dissent warned that to hold otherwise would “make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.”

In a decision from nearly a century-and-a-half ago, United States v. Lee, 106 U.S. 196 (1882), the Supreme Court emphasized the very different understanding of the place of the individual in a political society that prevailed in the United States from that which had prevailed in monarchical Europe before the American Revolution.  In the United States, “the people” are “sovereign.”  By contrast, under the British Crown, the Court observed, people are “called subjects.”

If the Court had upheld the individual mandate to purchase insurance as a proper regulation under the Commerce Clause, the federal government would have been affirmed as having the power to impose an affirmative duty on a person, not because of any action taken by that person, but simply because the person lives inside the borders of the United States.  If the federal government were permitted to exercise such direct power over a person based on that person’s mere existence, it would be difficult to avoid the conclusion that this person had been relegated into a mere “subject” of that government.  By virtue of being born, each person would become the proper subject of intrusive governmental direction.  Government would be the first principle in all matters, the first actor of that society.

If the people are sovereign, then they must be understood to precede government.  In the United States, the government proceeds from the people and is directed by the people.  Government must have power to act, within crucial limits, for the common good of the people.  But the federal government does not assume immediate power at the moment of birth and regardless of actions and choices affirmatively undertaken by that person.

To be sure, the individual mandate in the ACA survives, but in an alternative guise that I hope and believe may prove to be more than the simple clothing of a statutory provision in different garb.  Whether or not one is persuaded that Congress imposed a tax in constitutional effect when it expressly denied doing so, the power to tax individuals based on income -– and the ACA does vary the “tax” based on the income of those who have not purchased insurance -- has been constitutionally conferred on the federal government by the Sixteenth Amendment.  And, looking beyond the ACA, it is hard to envision many other attempts by Congress to directly regulate individuals by virtue of their mere existence that could be formulated as a tax and enforced as a tax.  Thus, the Court's approval of the ACA mandate as the equivalent of a tax is probably a ticket good for this ride only.  And that’s a good thing, or as good a thing as one could hope for if the ACA were to be upheld.