In which a conservative law professor argues for the constitutionality of Obamacare

But the insurance market is so complex that addressing one aspect of the market can easily create others problems. For example, one longstanding problem is that the insurance model makes affordable health care unattainable for many individuals already in poor health. Congress responded by prohibiting insurers from denying coverage or charging higher rates based upon an individual’s pre-existing health conditions. Yet given that prohibition, one could reasonably conclude that currently healthy individuals might forgo the purchase of insurance until they need it. That would undermine the viability of the insurance pool, which depends on payments from currently healthy individuals to finance health care for those who need it, when they need it. In this respect, the individual mandate is intimately connected to, and advances the aims of, the overall regulatory scheme put in place by the ACA.

The same is decidedly not true of the testing hypotheticals raised by members of the Court concerning mandates to purchase broccoli or automobiles: Individuals who wait to purchase such goods until they are needed do not undermine a larger regulatory scheme or shift costs to other consumers of those goods or to any other third party. Nor is the health mandate comparable to a requirement to purchase burial insurance, because no showing can be made that Congress would be responding to any real national problem. These factual distinctions in fact illuminate the narrowness of the ground upon which a decision upholding the mandate should stand.

The purported limit on congressional power favored by the mandate’s opponents—between constitutionally permissible regulation of “activity ” and unconstitutional regulation of “inactivity ”—is simply unknown to Commerce Clause jurisprudence, is wholly unworkable, and makes no economic sense. But even if it had any legitimate constitutional purchase, it would be satisfied in the case of the ACA. The overwhelming majority of those subject to the individual mandate are or will be engaged in the economic activity of receiving health care services. For that overwhelming majority, the mandate is a regulation of economic activity.

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