There is no doubt that a state can constitutionally require citizens to have health insurance. Why, then, is the Supreme Court fussing over the constitutionality of the individual mandate provision of the Affordable Care Act?

The answer is simple. States have plenary authority to legislate on matters of public policy. The national government, however, is a government of limited powers. It cannot constitutionally act unless the Constitution authorizes it to do so. The central question in the case now pending before the Supreme Court is whether the Constitution grants Congress the authority to require individuals to have health insurance. Opponents of the law argue that it exceeds the legitimate authority of the national government.

The government defends the constitutionality of the individual mandate on the basis of the Commerce Clause of the Constitution, which provides in Article I, Section 8, that Congress shall have the power “to regulate Commerce … among the several States.”

Over time, the Supreme Court has held that under this provision Congress can constitutionally regulate activity if, in the aggregate, it has “a substantial economic effect on interstate commerce.” Moreover, as Justice Rehnquist explained in 1995, the Court’s role in determining the constitutionality of federal legislation under the Commerce Clause is limited to deciding whether Congress “had a rational basis … for concluding that a regulated activity sufficiently affected interstate commerce” to merit federal action.

It is the Commerce Clause that authorized Congress to enact such legislation as the Sherman Antitrust Act of 1890, the Fair Labor Standards Act of 1938, the Civil Rights Act of 1964, the Environmental Policy Act of 1969, the Controlled Substances Act of 1970, and the Americans with Disabilities Act of 1990, to cite just a few examples.

In light of past decisions of the Supreme Court, arguments against the constitutionality of the Affordable Care Act initially seemed completely spurious. There can be no doubt that the economic effects of the health care industry on interstate commerce are huge, comprising more than 17 percent of the entire national economy. Thus, whatever the merits of the individual mandate in terms of public policy, there seemed no serious question about its constitutionality.

But here we are, the day after the Supreme Court heard arguments on the constitutionality of the individual mandate, and commentators reading the tea leaves of the justices’ questions think that there is now a realistic possibility that Justices Roberts, Scalia, Kennedy, Thomas and Alito might actually vote to hold the Act unconstitutional. This is surprising even to many conservatives, who might not like the Act, but who nonetheless think it is clearly constitutional.

What, then, is the argument against the constitutionality of the individual mandate? The argument, quite simply, is that unlike other federal regulations of economic activity, the individual mandate requires individuals to do something (buy health insurance) even though they have not affirmatively done anything themselves to affect commerce.

Unlike the businessman who enters into an agreement with a competitor to restrain competition in violation of the Sherman Act or the employer who refuses to hire an African American in violation of the Civil Rights Act, the individual who simply doesn’t buy health insurance hasn’t done anything to merit federal attention.

It should be pretty obvious that this is a distinction without a difference. Why is the employer who refuses to hire an African American any different from the individual who refuses to buy health insurance? Of course, one can say that the employer is in fact doing something — he is refusing to hire an African American. But that is no different than refusing to buy health insurance. The line between action and inaction in these situations is pointless.

One might also argue, however, that the person who refuses to buy health insurance is not doing anything that affects interstate commerce. He is simply making a decision not to buy something. That might be true if the individual never called upon the rest of us to pick up the tab when it later turns out that he needs health care. Because we are not a heartless community, we do not turn people away when they need medical attention, even if they can’t afford it.

The problem, then, is that the decisions of individuals in the aggregate not to buy health insurance wind up having a dramatic effect on the cost of health care for everyone else and therefore have a substantial effect on interstate commerce. The healthy young Texan who chooses not to purchase health insurance raises the cost of insurance for the older Arkansan who does. And this is true millions of times over. It therefore makes perfect sense for Congress to attempt to deal with this problem by requiring people to have health insurance, just as states require people who own cars to have auto insurance.

What seems to bother the conservative justices, though, is the slippery slope. If the federal government can require individuals to purchase health insurance, then there is no stopping point. The federal government can require us all to eat broccoli if that would help the broccoli industry or make us healthier (Scalia) and to buy burial insurance to avoid the risk that when we die the government will have to dispose of our bodies at public expense (Alito).

Lawyers love slippery slope arguments. They are a useful way of testing the wisdom of a particular principle or decision. If we do X, then what else will be have to do if we act consistently? Will we also have to do Y and Z? And if Y and Z are not good, then perhaps we shouldn’t do X.

But the slippery slope is a means of reasoning, not a conclusion. Every principle and decision has a slippery slope. The question is whether we can get off the slope before it reaches bad outcomes. In this instance, this is easy. The decisions of millions of individual Americans not to purchase health insurance (even though they can afford it) have a dramatic impact on the cost of health care for everyone else and on interstate commerce. This is clearly an appropriate matter for federal attention under the Commerce Clause.

If the decisions of individuals not to eat broccoli and not to buy burial insurance had similar effects on interstate commerce, then it might also be appropriate for the national government to intervene. But the hypotheticals are, quite frankly, ridiculous. They are bad arguments to which any first-year law student knows the answer. If the conservative justices, who are, after all, very good lawyers, rely on such arguments to defend a decision to invalidate the Affordable Care Act, then we know something else is going on.

How justices who purport to celebrate their commitment to judicial restraint and judicial modesty could even imagine striking down this law on such transparently weak grounds is beyond comprehension. For that reason, I don’t believe they will do so. If they do, it will be (another) dark day for the Supreme Court, which already labors under a cloud of public disillusionment after its decisions in Bush v. Gore and Citizens United.

Geoffrey R. Stone is an Edward H. Levi Distinguished Service Professor of Law at the University of Chicago. This post first appeared at the Huffington Post.

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24 Responses for “The Slippery Slope”

  1. BobbyG says:

    “Slippery Slope” fallacy properly means that If You Decide “A,” Then Bad Things “B thru Z” are INEVITABLE, that there’ll be nowhere to be able to draw a line (“limiting principle”) in the future.

    SCOTUS, should they Uphold, could save us all a lot of trouble if they just enumerate “Bad Things B thru Z” when they publish their PPACA ruling.

  2. pcb says:

    I was thinking of limiting principles, federal power, etc.

    Off the top of my head, how would a congressional decree like this fare:

    “the US Auto industry, as a pillar of domestic manufacturing, been important to the overall success of the American economy. It is clearly an important Federal matter to keep the American economy healthy. Therefore, under the commerce clause, Congress will decree that if you buy a car, you will buy a car that benefits the US auto industry, or you will pay a hefty fine.”

    Maybe it’s a stupid example, I dont’ know. But why wouldn’t this be OK under Mr Stone’s interpretation of the commerce clause? If it’s not OK, what limiting principle makes it not OK?

    • Meena says:

      It is not ok pcb, and I will try to explain why I feel so. To understand this better, we first have to answer the Ur question: Is health a right or a responsibility? According to me, it is both. A society is a grouping of individuals and as long as we live in a group, there are rules and there are rights. Society creates technology, medical advances, drugs etc., to which every member must have access. That is the right of every citizen. Howver, to be a member of the group, and to avail of its advantages, a group member must also contribute with responsible action. That means looking after health, and being able to pay for it when needed.

      The difference between a car and your health is this:
      Life is finite. Mortality is inevitable. And illhealth will invariably visit every human with consequences that can range from full cure to mortality. Therefore, EVERY citizen will need to engage with the health system at SOME point of his life. It is the very nature of living that sickness, aging, disease and death will visit EVERY individual. Living mandates engagement with the health/medical system. This engagement will require money and it is far better to be prepared for it.
      Buying a car on the other hand, is an exercise of individual choice. Sickness and death are not matters of choice.

      PS: caps above only for emphasis

  3. ken says:

    This may not be the best example to make your actual point. Congress can easily get the effect of what you suggest by imposing a sizable import duty on foreign cars. Aside from (possible) treaty restrictions, there’s nothing to prevent such a duty.

  4. pcb says:

    Ken, I’m not asking whether there are other ways to accomplish the goal. I’m asking whether my example is constitutional or not.

    • Paolo says:

      PCB – In my opinion, your example is constitutional. It is no different than saying: IF you buy or sell beef, you have to buy or sell beef that is USDA approved. Or IF you hire a nanny, you have to hire one that has a legal right to work. Or IF you buy a car, the car must satisfy certain environmental standards and pass certain inspections. The federal government has always had the power to regulate how you purchase or sell items and services, as long as there is an interstate component to it.

      A different story is if you are mandated to buy a car when you don’t want to buy a car.

      • pcb says:

        paolo- “A different story is if you are mandated to buy a car when you don’t want to buy a car”

        yeah, why not, if it would help the economy. If you don’t do it, you’re putting an undue burden on those who are entering the car buying market. They shouldn’t have to support the manufacturing sector by themselves, and those non car buying free riders can’t continue to benefit from a strong economy without doing their fair share. Thus, a car buying mandate seems reasonable within the commerce clause. (we can provide vouchers if needed)

        • Paolo says:

          The federal government has the constitutional power to regulate the car market. This means that it DOES have the power to tell you what kind of car you CAN buy. It does NOT have the power to force you to drive a car (or force you to get medical treatment). It MAY have the power to force you to purchase a car only if it is necessary to regulate the car market. For example, if 80% of car non-buyers end up stealing a car or if a few non-buyers can start a death spiral and destroy the car market, then a mandate to purchase a car would be necessary.

          However, this is not the case. The economic impact of the few car non-buyers today seems to be close to zero. There is no adverse selection problem or free-rider problem that any economist or court would take seriously. No person is excluded from the car market. No person has to pay more than somebody else for the same car. Since its not necessary for the regulation of the car market, a federal mandate to purchase cars appears to be unconstitutional.

          • Nate Ogden says:

            “The economic impact of the few car non-buyers”

            Tens of millions of adults 16+ don’t own cars.

            “Around 48% of New Yorkers own cars” That means 52% don’t.

            “No person is excluded from the car market. ”

            Of course they are, for the very same reason people are excluded from the insurance market, price. It’s a problem that would be even worse if the government not only required them to buy cars but required them to buy excessivly safe Saabs with all the bells and whistles.

            “No person has to pay more than somebody else for the same car.”

            With the exception of car max and a couple others yes they do. Most people negiotate the price of their car meaning they all pay more then the one person that paid the least.

            “free-rider problem”

            Public transportation is subsidized in this country by tens of billions of dollars per year. If everyone owned a car we could get rid of all those money losing buses and subways.Amtrak!

            80% of people are insured. Most that are uninsured are so by choise. Why does the government need to regulate insurance?

      • Meena says:

        Paolo, the difference between your examples and healthcare is the critical matter of choice. Having healthcare is not a matter of choice; it is necessity. Unless perhaps, if someone gives it in writing that he/she will never ever use healthcare if and when the need arises and even then, if such a person arrives at a hospital in a critical condition; no hospital can legally or morally turn him down by waving this paper in his face. And at that point, when he has had a change of heart, who pays? So there is no way out of it. Healthcare is a necessity.

        Also, please notice a critical point in all your examples: The government is mandating or regulating the service provider to stick to and within a certain regulatory framework. The rules apply to the nanny, to the beef seller and to the car manufacturer. NOT to the citizen who CHOOSES to buy their services.

        • Paolo says:

          Meena – I agree with most of what you say, but the last sentence is not quite accurate. There are plenty of examples where regulatory rules apply to the buyer, not just the seller. For example, if you hire a nanny that is below the legal age to work, you (the buyer of the service) have broken the law, not the seller.

          • Meena says:

            Thanks for responding Paolo. I do get the point you make, but am not sure I agree. IMHO:

            1. An individual cannot be regulated. An industry or business can.
            An individual comes under the ambit of the Law. Industry comes under the ambit of both the Law and its Regulatory body.
            Regulation is different from Law and is under and within it. And the reason for the distinction is because of ‘choice’. As long as individuals can choose to participate (or not) in a commerical transaction, regulation (a blanket set of rules that applies to all and not to the few who choose) cannot be enforced.

            2. So, if I hire an under-age nanny, I have broken a law. But not a regulatory mandate. Whereas the nanny’s contractor has broken both. There is a difference.
            The individual is obliged to know and obey the Law and need not be bothered by the regulatory stipulations. In the nanny example therefore, I have only broken the Law if I ‘knew’ she was underage and still hired her. However, I am not ‘obliged’ to know.
            The contractor however is obliged to know, is supposed to employ due diligence and cannot use lack of knowledge as an excuse.

            3. When applied to health, the struggle with the constitutionality of the mandate becomes clearer. Does the government have the right to mandate choice? By ‘choosing’ to be an auto manufacturer, I choose to come under the auto industry’s regulatory framework. By taking away individual choice and mandating health, the government is bringing it under the purview of the Law.

            4. The Law can only be exercised on an individual if direct or indirect harm to another can be proven. This whole debate have more clarity, if we could put out in simple concise and clear language, the impact on society. We all say that costs will rise for others when an individual chooses to not buy health insurance. That conviction comes more from common sense and logic, than figures. If prehaps, the government , instead of relying on the common sense of the pubic, puts out accessible numbers and figures, that defines the impact in stark terms; this debate will suddenly become a whole lot clearer.

        • Paolo says:

          Meena – a regulation is simply a rule written by the executive branch to implement a statute written by the legislative branch. The law is comprised of both statutes and regulations. For example, Congress passes a statute like the PPACA that says that all health insurance has to cover a minimum level of benefits (not fully defined). The administration (HHS dept) then passes a regulation stating that birth control is part of that minimum level of benefits.

          Laws (statutes and regulations) can apply to both individual and corporations. Many laws deal with the rules for commercial transactions and can impose penalties if one of the parties breaks the rules. Sometimes the penalty applies to the seller, sometimes to the buyer, and sometimes to both. There are plenty of examples were a buyer can be subjected to a penalty for breaking the law (statutes or regulations)

          • Meena says:

            :) Thanks for the information Paolo. I stand corrected and educated. I must clarify that I am not a lawyer – I am basically parsing the language and terms as also using a liberal’s logic. Applying the word ‘regulation’ to an individual *feels wrong.
            This has been a fascinating exchange. I just wish I had more time to read more and respond too. Thank you! Am off to cogitate on regulate

  5. Meena says:

    Thank you for a fine read.
    “What seems to bother the conservative justices, though, is the slippery slope”

    We have a judicial system to deal with ‘slippery slopes’. If a judge cannot adjudicate on a slippery slope, why is he/she a judge at all? To turn down a policy proposal *because it raises the prospect of a slippery slope is beyond specious. It is a negation of the very system. It is for the Honorable Justices to tell us how to get off the slippery slope and pass a judgment that ensures that all citizens have access to health at reasonable and fair price.

    • Dr. Mike says:

      “It is for the Honorable Justices to tell us how to get off the slippery slope and pass a judgment that ensures that all citizens have access to health at reasonable and fair price.”

      No, that is not their job. That is what you want, but that is nowhere in their job description. Their job is to find the law constitutional or not, regardless of the consequences. It is then up to congress, or up to the states, to amend the constitution so as to avoid those consequences, or more likely, for congress to write a better law that passes constitutional muster.

      And, despite the claims to the contrary, it is actually possible to avoid the health care system altogether. Ask the local coroner if they have ever had to sign off on the certificate of someone who had never sought care. Though rare, those types of people do exist.

      • Meena says:

        Yes, you are right, Doc; that is indeed what I want. Justices and the judiciary replaced the village/city elders. To my mind, that is the role they should fill. They should steer society’s moral compass.

        I believe that there is a systemic flaw in getting elected people to write a law. Elected people from varied professions, ideologies and constituencies, while a good blend of representation of the populace, represent vested interests that intervene and interfere with the writing and/or the enaction of the law in its true sense. You could well ask me, if Justices don’t have biases. They do of course. But like medicine; the Law should teach its pupils to climb over prejudice and bias. As I am writing that, so many fallacies in that statement rush to my mind and I simply don’t have the time to argue them now. I also think I am coming off as some cantankerous old lady on a 17th CE nostalgia trip and had better stop.

        And yes again. Some people do escape (yay! for them) and avoid the health care system altogether. However, they probably are too much of an exception to provide a valid statistic for policy consideration.

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  7. Jerry says:

    I believe healthcare should be kept private. ive never had a high cost plan and have never been mistreated by my provider. I dont wanna pay for other peoples healthcare when no one in america takes care of themselves…if we were a naturally fit country and had better food sources i would change my mind i think.

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