Florida and more than half of the states in the nation have challenged the federal government’s Affordable Care Act because it deprives Americans of their individual liberty and violates the United States Constitution. The U.S. Supreme Court will decide whether to enforce constitutional limitations on federal authority — or, conversely, whether to allow the federal government to dominate states and individuals to the point of dictating day-to-day decisions.
The court should reaffirm the basic constitutional bargain struck among the states that makes our federal government one of limited, enumerated powers.
The act’s chief problem is its individual mandate, which requires virtually everyone to obtain health insurance coverage simply as a condition of living in America. Forced conscription into a commercial market is a startling new exercise of federal power that Congress has never before attempted.
The individual mandate’s stated goal is to lower insurance costs by forcing “healthy individuals” to buy expensive policies that they do not want or need so that insurers can charge less to others. Congress’s central planning on both the supply and demand side of the insurance market exceeds its constitutional authority because the bare power to “regulate” commerce does not include the power to force Americans into commerce. If it did, there would be no end to Congress “fixing” markets with the wallets of ordinary citizens. Congress could require Americans to obtain unwanted loans to bail out failing banks, to purchase a car to reinvigorate struggling carmakers or to buy solar panels to resuscitate failed Solyndra-like investments.
Congress can “regulate” markets when individuals choose to enter them, but it’s incorrect and dangerous to think this power extends to dragooning people into markets in the first place. Article I, Section 8, of the Constitution distinguishes the power to “regulate” from that of creating something that is subject to regulation. As the states’ brief argues, Section 8 grants Congress the power “to coin money” before granting the power “to regulate the value thereof,” and the powers to “raise and support armies” and “provide and maintain a navy” before the power “to make rules for the government and regulation of the land and naval forces.” The framers were precise in Section 8. And the bare power to “regulate” commerce does not extend to the imperious, superior power to force individuals into commercial markets.
Additionally, many Supreme Court cases recognize the regulation of health and welfare is an area left to the states, which have general police powers. For this reason, too, Congress’s paternalistic regulation of individual health care decisions is on shaky constitutional ground.
Nor is the mandate supportable under Congress’s taxing power. The word “tax” is nowhere to be found in the act, where Congress described its authority to enact the mandate. Also, President Barack Obama blasted ABC’s George Stephanopoulos in 2009 for suggesting that the mandate is equivalent to a tax. “To get health insurance is absolutely not a tax increase … I absolutely reject that notion,” the president said.
Health and Human Services Secretary Kathleen Sebelius, a named defendant in this case, testified before the House Ways and Means Committee late last month that the individual mandate is “not per se a tax.”
So while the president and Congress made the unmistakable choice not to enact a new tax and avoided the political heat that comes with doing so, the government’s lawyers persist in pressing tax-based rationales for the mandate. This is a grasp at straws:Even the clients have disowned this argument from their lawyers.
The act’s second primary deficiency stems from its massive Medicaid imposition on the states. Of the 34 million persons expected to gain insurance under the act, 18 million must be added to state Medicaid rolls. Medicaid will cover almost a quarter of the entire U.S. population — close to 80 million persons — and cost states billions more to operate each year.
The Constitution forbids the government from compelling states to operate federal programs against their will. And here, Congress employs the potency of its spending clout and the states’ long-standing participation in Medicaid to force the states’ hand. Though the act’s Medicaid expansion will bust already-ailing state budgets, states have no choice but to capitulate or forfeit every cent of current and new federal Medicaid funding. States must provide Medicaid services to millions more people, or lose billions of dollars annually.
Medicaid’s sheer size robs the states of any real choice in this matter. Medicaid is the single largest federal grant-in-aid program, accounting for more than 40 percent of all federal grants to states — for example, almost 20 percent of Florida’s entire annual budget. Federal Medicaid funds derive from the hard-earned dollars of federal taxpayers in the states. States cannot refuse the return of so massive a pot of federal funds only to see it directed instead to “Obamacare”-friendly states.
The severity of Congress’ all-or-nothing spending condition makes the Medicaid scheme unconstitutional. While Congress may “mildly encourage” states with federal money, such as conditioning the receipt of small federal grants on setting a legal drinking age of 21, it forbids inducements that are “so coercive as to pass the point at which pressure turns into compulsion.”
The act’s Medicaid scheme presents the ultimate case of unlawful compulsion with the biggest federal spending program. Because states stand to lose all their funding unless they operate the new Medicaid program, the court should invalidate the act. The government simply cannot exploit its tremendous spending leverage to compel state action.
This case portends the future of our country’s basic constitutional structure. We cannot allow the federal government unfettered control over the lives of individuals and states.
The author is the Attorney General of the state of Florida. Post first published in Politico.