I know that the conventional wisdom is that the Supreme Court is going to declare the Patient Protection and Affordable Care Act unconstitutional. I am not a Supreme Court scholar, but I wonder if the conventional wisdom is wrong.
The key issue in the case is whether the Commerce Clause of the Constitution permits Congress to regulate health insurance. Those challenging the law argue that it does not because health insurance does not have sufficient impact on commerce. But in a 2005 case, the Supreme Court considered whether the Commerce Clause gave Congress “the power to prohibit the local cultivation and use of marijuana in compliance with California law.” That case, Gonzales v. Raich, 545 U.S. 1 (2005) concluded that the Commerce Clause did, in fact, allow Congress to prohibit the growth of medical marijuana. Personally, I find it hard to argue that it is intellectually consistent to claim that medical marijuana affects interstate commerce, but health insurance does not. It is certainly possible that the Court will find some way to conclude that health insurance’s impact on commerce is lower than the impact of medical marijuana, but I fail to see how one could make that argument with a straight face. So unless the Court changes course and concludes that the Raich case was wrongly decided, my best guess is that the Court will uphold Patient Protection and Affordable Care Act (PPACA).
I would also note that federal law currently requires hospitals to treat individuals who present in the emergency department. If that requirement is constitutional, then it is hard to see why PPACA is not. If, in fact, the Commerce Clause doesn’t allow Congress to require the purchase of health insurance, EMTALA and a host of other similar laws would seem to be unconstitutional.
I wouldn’t encourage anyone to bet their life savings on this, but I do think that the fact that Supreme Court Justices often place a high value on intellectual consistency and maintaining the Court’s credibility means that there is a very high likelihood that the Court will uphold PPACA. My two cents.
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