Matt Sissel is a young entrepreneur who is pursuing the American dream. After returning from military service in Iraq and paying his way through art school, he opened a studio in Iowa City, where he sells his fine art and offers art lessons. Until recently, Matt’s entire focus had been on furthering his education and art business. So he made the considered judgment to forgo some luxuries—such as health insurance.
In his twenties, Matt is healthy and has no preexisting medical conditions. He is self-insured—paying out of pocket any medical expenses that might arise—and wants to continue to self-insure because he believes the cost of health insurance premiums is excessive and that his money is better devoted to his business.
But the federal government couldn’t care less about Matt’s priorities and choices.
Beginning in 2014, it will force Matt, along with almost every other American, to buy a comprehensive, government-approved health-insurance plan from a private insurance company, on pain of stiff civil penalties. This “Individual Mandate” is at the heart of the Patient Protection and Affordable Care Act—also known as “ObamaCare”—which Congress enacted and the president signed into law in 2010.
As a consequence of the Individual Mandate, Matt must act now to make financial plans: either purchase health insurance or pay a hefty annual penalty. Given the financial burden it will impose, he can no longer afford to hone his craft by furthering his education in art. Matt must focus exclusively on the creation and sale of his artwork in order to brace himself for the impending obligations the Individual Mandate imposes.
Outraged that he is being forced to divert his hard-earned resources away from his education and career in order to buy a service he neither needs nor wants, Matt has decided to sue the federal government, asking the federal district court in Washington, D.C., to enjoin enforcement of the Individual Mandate on the grounds that it violates the United States Constitution. Other legal challenges to the Individual Mandate are pending in courts across the country, such as the well-known lawsuits brought by various state governments and officials whose purpose is to protect their sovereignty against federal encroachment. But few challenges take up the cause as championed by Matt, who is driven by the explicit desire to have the government recognize his right to life, liberty, and the pursuit of happiness, exercised in accordance with his own values and goals.1
Let us consider the prospects for Matt’s constitutional challenge to the Individual Mandate.
ObamaCare’s Individual Mandate
In brief, here is how the Individual Mandate will work: Beginning in 2014, with few exceptions, all individuals with legal residence in the United States will be forced to purchase a health-insurance plan with “minimum essential coverage,” as defined by the government. Exempt individuals include Native Americans, religious objectors, Americans living abroad, and the poor (whose health care will be subsidized). And what the law defines as “minimum essential coverage” is far more than is necessary for young and healthy individuals such as Matt. Thus, a catastrophic health-insurance plan covering only expenses related to medical emergencies—which would make sense for many Americans—would not satisfy the mandate’s requirements. Moreover, individuals subject to the Individual Mandate cannot satisfy the “minimum essential coverage” requirement by self-insuring: Under the act, they are prohibited from paying for their medical expenses out of pocket.2
Thus, if Matt fails to buy “minimum essential coverage” by January 1, 2014, the government will assess a financial penalty against him for every month he remains without such coverage. The penalty for failing to purchase approved health insurance is the greater of 2.5 percent of the taxpayer’s annual income, or $695 for each uninsured family member per year, up to a maximum of $2,085 per family per year—not an insignificant sum.3 Does the federal government—specifically, Congress—really have the legal power to force Matt and other Americans to buy a product or service, such as health insurance, from a private company?
The government’s main argument in its litigation with Matt and other plaintiffs is that the Individual Mandate constitutes an exercise of Congress’s authority to “regulate Commerce . . . among the several States,” as provided in article 1, section 8, of the Constitution. Properly interpreted, the Commerce Clause confers on Congress very limited, individual-rights-protecting power—specifically, the power to eliminate protectionist barriers to trade erected by state governments. Indeed, for most of American history, the federal government used its Commerce Clause power as a shield against burdensome state regulation, rather than as a sword to expand its control over the national economy.4 But after seventy years of constitutional interpretation at the hands of a judiciary dominated by Progressive legal theories and relentless political pressure for ever-increasing federal interventionism, the courts now read the Commerce Clause as conferring broad powers on Congress to substantially limit economic freedom—an interpretation inconsistent with the principle of individual rights upon which America was founded.5
Despite this trend, even the courts responsible for broadening the scope of the Commerce Clause have conceded that it has “outer limits.”6 Courts have defined three categories of interstate commerce that Congress may regulate: 1) “the use of the channels of interstate commerce”; 2) “the instrumentalities of interstate commerce, or persons or things in interstate commerce”; and 3) “activities that substantially affect interstate commerce.”7 A federal law enacted under the Commerce Clause must, at the very least, regulate a commercial activity having effects across state lines; it cannot regulate a commercial activity whose effects are confined to one state. More importantly, in every case testing the constitutionality of a federal law under the Commerce Clause, the law at issue has regulated some activity—some action, transaction, or deed affirmatively and voluntarily undertaken by the regulated party.
In the New Deal-era case of Wickard v. Filburn8—the most far-reaching example of Commerce Clause power—the Court considered a federal law limiting the amount of wheat farmers could grow in order to boost wheat prices nationally. Farmer Roscoe Filburn grew wheat beyond his quota, for consumption by his family. When the federal government fined him and ordered him to destroy his excess wheat, he challenged the law as being beyond the scope of the Commerce Clause. But the Supreme Court upheld the law on the grounds that the regulated activity—producing wheat for personal consumption—had a substantial effect on interstate commerce. Similarly, in Gonzales v. Raich,9 the Supreme Court upheld a federal law criminalizing an activity—the production and consumption of homegrown cannabis, even when allowed by a state for medicinal purposes. The Supreme Court reasoned that the activity had a substantial effect on the national supply and demand for marijuana, and thus legally could be regulated by the federal government.
In two other important Commerce Clause cases, the Supreme Court struck down federal laws that pertained to a voluntarily undertaken activity. In U.S. v. Morrison,10 the Court struck down the parts of a federal law that provided a federal civil remedy to victims of gender-based violence on the grounds that the activity in question—violence against women—was a local or state issue that had an insufficient effect on interstate commerce. And in U.S. v. Lopez,11 the Court struck down a federal law banning the carrying of handguns in school zones, again because the activity in question (handgun possession) had an insufficient effect on interstate commerce. The Court refused to allow Congress to regulate purely local, noncommercial criminal actions on the grounds of their long-term national economic effects, because, in the long run, all actions have economic consequences.
In each of these cases, the plaintiff had placed himself voluntarily within the stream of commerce, allowing Congress to make at least a colorable claim that its law regulated an “activity.” And here lies the crucial difference between these federal regulations and the Individual Mandate.
With the Individual Mandate, the government has, for the first time in American history, enacted a law that forces individuals to engage in an act of commerce. The law does not merely regulate the commercial behavior in which a person chooses to engage (a characteristic of many existing laws); it actually compels him to engage in specific, commercial behavior in the first place. As the nonpartisan Congressional Research Service reported to Congress six months before it enacted the Individual Mandate, “it is unclear whether the [Commerce Clause] would provide a solid constitutional foundation for legislation containing a requirement to have health insurance,” because it is a “novel issue whether Congress may use this clause to require an individual to purchase a good or service.”12
Consider the implications for individual freedom if the Individual Mandate is upheld as a constitutional exercise of Commerce Clause power. The federal government contends that the Individual Mandate merely regulates the method and timing of inevitable economic decisions that everyone will make at some point—specifically, “economic and financial decisions about how and when health care is paid for, and when health insurance is purchased.” But if Congress can compel Americans to buy a good or service on economic grounds, there is little that Congress cannot compel them to do. Congress could pass a federal law requiring all driving-age Americans to purchase cars in order to jump-start the national automobile industry, or require individuals to consume a certain amount of fruits and vegetables in order to promote a healthier and more productive national workforce.
To date, no binding judicial precedents authorize Congress under its Commerce Clause power to compel participation in economic activity. Where the Constitution does grant Congress the power to compel behavior it uses verbs other than the Commerce Clause term “regulate.” For example, in The Selective Draft Law Cases, the United States Supreme Court found that Congress may draft persons into the military against their will under the power to “raise” armies conferred in article 1, section 8, clause 12, of the Constitution. The Constitution also gives Congress powers to lay and collect taxes, establish a post office, and do other things that have some effect on interstate commerce, none of which are authorized pursuant to the Commerce Clause.
The courts may or may not strike down the Individual Mandate, but there is no legal precedent whereby they can honestly claim that the Commerce Clause authorizes this gross violation of rights.
However, in support of the Individual Mandate, the federal government has pointed to sources of power other than the Commerce Clause. For example, the government claims that the Individual Mandate is “necessary and proper for carrying into Execution [the Commerce Clause power].”13 But the Necessary and Proper Clause to which the government refers “is not an independent fount of congressional authority”;14 it simply recognizes that the government may employ certain means to achieve otherwise objective ends—ends independently grounded in an enumerated power, such as the Commerce Clause power.15
The government also has tried to characterize the Individual Mandate, with its fine for noncompliance, as a “tax” that is authorized under its “Power To lay and collect Taxes . . . and provide for the . . . general Welfare” under article 1, section 8, clause 1, of the Constitution. The government’s characterization here also misses the mark. A “tax” is a “pecuniary burden laid upon individuals or property for the purpose of supporting the Government”;16 by contrast, a “penalty” is designed to punish, promote, or regulate behavior.17 As its text demonstrates unequivocally, the ObamaCare law is not designed to raise revenue to support the government; in fact, the law does not even mention any revenue-generating purpose behind the Individual Mandate or its penalty. The fine for noncompliance with the Individual Mandate is nothing more than a penalty to punish Americans who choose not to purchase health insurance.
In short, nothing in the Constitution supports the Individual Mandate. It is not a proper exercise of either the Commerce Clause or the Necessary and Proper Clause power. Moreover, the Individual Mandate cannot reasonably be characterized as a “tax” imposed for the general welfare of Americans. It is a blatant violation of individual rights—plain and simple—and an unconstitutional attempt to expand the power of the federal government even beyond what today’s jurisprudence allows.
As of this writing, a decision is still pending in Matt Sissel’s case. But courts that considered similar constitutional challenges to the Individual Mandate have rendered different decisions on the issue. Two trial-level courts—in Virginia and Michigan—have dismissed challenges to the Individual Mandate on the grounds that the plaintiffs made no viable claim that the law violates the Commerce Clause.18 But three other trial-level courts—in Virginia, Ohio, and Florida—have ruled that viable claims against the Individual Mandate do exist, and two of them have gone as far as to strike down the Individual Mandate as unconstitutionally beyond the scope of the Commerce Clause.19 Many of these cases are now on appeal, and in all likelihood the Supreme Court will be the final arbiter of the Individual Mandate’s legality.
The outcome of the ObamaCare cases could represent a significant milestone in the history of the American republic—and for the survival of individual liberty in this country. If the Supreme Court strikes down the Individual Mandate, its decision most likely will preserve the status quo: The federal government will continue to enjoy massive, but not total, regulatory power over Americans’ economic freedom. However, if the Supreme Court abdicates its duty to enforce the Constitution and upholds the Individual Mandate, nothing but the self-restraint of politicians in Congress will prevent federal officials from dictating the personal and financial affairs of every American, no matter how trivial. Many Americans, like Matt Sissel, will find it impossible to accomplish their goals and achieve their dreams. The resulting political order will be the very antithesis of the Founders’ vision of a land in which every person’s right to pursue his life, his liberty, and his happiness—a right that is boldly enshrined in the Declaration of Independence and protected by the Constitution—is held sacrosanct.
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Acknowledgment: I would like to thank my PLF colleagues and cocounsel on the Sissel case, Timothy Sandefur and Luke Wake, for their insightful comments on this article.
1 Matt Sissel, “Why I’m Suing to Get Back My Freedom,” Christian Science Monitor, September 13, 2010, available at http://www.csmonitor.com/Commentary/Opinion/2010/0913/Health-care-reform-Why-I-m-suing-to-get-back-my-freedom.
2 Patient Protection and Affordable Care Act, Pub.L. 111-148, 124 Stat. 119, to be codified as amended at scattered sections of the Internal Revenue Code and in 42 U.S.C.
3 26 U.S.C. § 5000A(c).
4 For a discussion of the original meaning of the Commerce Clause power, see Randy E. Barnett, Restoring The Lost Constitution: The Presumption of Liberty (Princeton: Princeton University Press, 2004), ch. 11.
5 Richard A. Epstein, How Progressives Rewrote the Constitution (Washington, D.C.: Cato Institute, 2006).
6 United States v. Morrison, 529 U.S. 598, 608 (2000).
7 United States v. Lopez, 514 U.S. 549, 609 (1995).
8 317 U.S. 111 (1942).
9 545 U.S. 1 (2005).
10 529 U.S. 598 (2000).
11 514 U.S. 549 (1995).
12 Congressional Research Service, Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis, July 24, 2009, at 3.
13 U.S. Const. art. 1, sec. 8, cl. 18.
14 U.S. v. Comstock, 560 U.S. ___ (2010) (Thomas, J., dissenting).
15 McCulloch v. Maryland, 17 U. S. 316 (1819) (“Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.”).
16 United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U.S. 213, 224 (1996).
17 Dep’t of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 779-80 (1994).
18 Liberty University v. Geithner, 753 F. Supp. 2d 611 (W.D. Va. 2010); Thomas More Law Center v. Obama, 720 F. Supp. 2d 882 (E.D. Mich. 2010).
19 Commonwealth of Va. ex rel. Cuccinelli, 728 F. Supp. 2d 768 (E.D. Va. 2010); United States Citizens Ass’n v. Sebelius, 754 F. Supp. 2d 903 (N.D. Ohio 2010); Florida v. U.S. Dep’t of Health & Human Servs., 716 F. Supp. 2d 1120 (N.D. Fla. 2010).