Obamacare Constitutional? Not So Fast
October 1, 2013 in Politics
On June 28th, 2012, the United States Supreme Court announced a sweeping decision, NFIB v. Sebelius, otherwise known as the challenge to the Affordable Care Act (“Obamacare”). In it, writing for the majority, Chief Justice John Roberts declared “The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”
In this aspect of the ruling, the Supreme Court was upholding what is known as the Individual Mandate, which is the legal requirement that all US citizens either obtain health care or pay a financial penalty. It’s important to note that in this ruling, the Chief Justice Roberts and the Court did not rely on the traditional method for allowing the federal government to pass essentially any law it pleases, the Interstate Commerce Clause. Found in Article 1 Section 8, the ICC states that Congress shall have the power “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes”. The argument typically goes, and was made in the government’s defense of the ACA and Individual Mandate, that because any given activity can somehow be tied to commerce, and because in our modern society, virtually all commerce can be considered to be “between the several states”, then Congress has the Constitutional authority to pass a law regulating said activity.
NFIB v. Sebelius provides an important roadblock to the usage of the Interstate Commerce Clause for the purpose of granting the government unlimited power. By refusing to rely upon the ICC, the Supreme Court has told us that there is, indeed, a limit to the applicability of Interstate Commerce as a means for regulating the everyday lives of Americans. Where that limit lies was beyond the scope of the case before the Court, however, the fact that Interstate Commerce wasn’t used to uphold the Individual Mandate tells us that the limit must exist. This, in itself, is a victory for advocates of limited government and personal freedom.
However, by upholding the Individual Mandate under the federal government’s taxing power, also found in Article 1 Section 8, Chief Justice Roberts has told us that the enforcement clause of the Affordable Care Act — the Individual Mandate — is a tax, not a penalty as claimed by the federal government. Laying and collecting taxes is certainly within the purview and power of the federal government, and as the Court pointed out, it is outside of the purview of the Supreme Court to rule on the wisdom of the tax.
Well and good, right? Well, no. There is a limitation built into the Constitution when it comes to the power to “lay and collect taxes”, and that limitation is found in Article 1 Section 7 — “All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.” This is where things get complicated, and what the Constitutionality of the matter hinges on is whether the final bill that was passed by both houses of Congress, and signed by the President, originated in the United States House of Representatives. Although the US House initially passed the Affordable Health Care for America Act, the Senate did not. Instead, the Senate took up HR 3590, a bill already passed by the House dealing with housing tax breaks for members of the Armed Forces, and used the Amendment process to modify the content of the bill from the ground up, turning HR 3590 into the Patient Protection and Affordable Care Act. It’s important to note at this point that the actual final content of the PPACA was never proposed, considered, or approved by the House.
Skipping ahead — and bypassing the chicanery used to pass the bill in the first place — the Senate eventually passed the PPACA. Unhappy with some aspects of the Senate bill, but unwilling to propose changes that would have to pass a Republican filibuster in the Senate, House Democrats agreed to pass the Senate bill using a process known as Reconciliation. This process is not uncommon, but is limited to making changes in the budgetary process, as per the Congressional Budget Act of 1974. As the concerns addressed by House Democrats were budgetary in nature, in certain circumstances, this process would have been appropriate. Because Democrats held the majority in the House, they were able to force their own interpretation of this process on the Republican minority (and over the objections of a substantial number of Democrats) and pass the Health Care Education and Reconciliation Act on March 21st, 2010, by a vote of 219-212.
Parliamentary trickery aside, the content of the final bill did not originate in the House. HR 3590, an unrelated bill, did originate in the House, and was amended by Senate Democrats to turn it into the PPACA, however, the only issues that could have been considered under Reconciliation were those directly relating to budget changes. Had the entire Senate bill been considered under normal rules, the Republicans had sufficient bipartisan support to maintain an almost indefinite filibuster, preventing the passage of the bill in any form. Utilizing an unrelated and somewhat obscure process — and by abusing their power to interpret the rules, as the majority party — House Democrats performed an end-run around the United States Constitution, as a means to pass a bill otherwise impossible to pass. While the Supreme Court upheld the Individual Mandate in it’s final form under the taxing power, the Court was not asked to rule on the Constitutionality of the process utilized to pass the bill, and therefore did not do so.