(Cross-posted at Winning Progressive)

The U.S. Supreme Court has announced that it will hold oral arguments on March 26, 27, and 28 in the cases it has agreed to hear that challenge the constitutionality of President Obama’s historic health care reform legislation, the Patient Protection and Affordable Care Act. On the first day, the Court will hear arguments regarding the jurisdiction of federal courts to hear the case, while the third day will focus on a challenge to the expansion of Medicaid in the health care law. On the middle day, March 27, the Court will hear two hours of argument on the core challenge to health care reform – the shared responsibility or individual mandate provision.

While it can be difficult to predict the outcome of the Supreme Court case, recent decisions by federal appellate courts upholding the constitutionality of health care reform should give progressive supporters of reform hope. Most recently, in the case of Seven-Sky v. Holder, the U.S. Court of Appeals for the D.C. Circuit rejected the argument that health care reform’s individual mandate provision exceeded Congress’ authority under the Commerce Clause provision of the U.S. Constitution. The decision, authored by Judge Laurence Silberman, is the second time in the past few months that a conservative, Republican appointed Judge has upheld the constitutionality of President Obama’s signature legislative achievement.

As we’ve previously explained, the 2009 Patient Protection and Affordable Care Act made numerous fundamental reforms to our nation’s broken health care system. These reforms will expand health insurance coverage to 32 million more Americans, provide substantial assistance of individuals and small businesses seeking to purchase insurance, end abusive insurance industry practices such as pre-existing condition denials, and close the Medicare prescription drug coverage doughnut hole. While a single-payer Medicare-for-all system combined with an aggressive effort to rationalize health care spending is necessary to truly fix our broken health care system, the 2009 health care reform legislation represented real progress that will save lives and money.

The biggest political hurdle facing health care reform is the “shared responsibility” provision of the Act, which is more frequently referred to as the “individual mandate.” Under this provision, all Americans are required to purchase health insurance or to pay a penalty if they fail to do so. While many people do not like the thought of the government being able to tell them that they have to purchase something, the reality is that the individual mandate is necessary for health care reform to work. Without such a mandate, pre-existing condition exclusions could not be eliminated, because otherwise people would simply refuse to purchase insurance until they get sick knowing that they could not then be denied coverage. In addition, the mandate is necessary to reducing overall costs because it brings more people into the system and, therefore, increases the number of healthy people paying in.

Ever since health care reform was signed into law, conservative activists have sought to have the courts declare it unconstitutional with the individual mandate as the focus of those challenges. As the DC Circuit stated in Seven-Sky v. Holder:

Appellants’ central objection to the mandate is that Congress, for the first time, has actually commanded that all Americans purchase a product, health insurance, that many of them have never purchased before, never wish to purchase, and may never need. Appellants do not question that Congress can regulate the interstate health care and health insurance markets, or that Congress reasonably could conclude that decisions about whether to purchase health insurance substantially affect interstate commerce. The contested issue here is whether the Government can require an immensely broad group of people–all Americans, including uninsured persons with no involvement in the health insurance and health care markets–to buy health insurance now, based on the mere likelihood that most will, at some point, need health care, thus virtually inevitably enter that market, and consequently substantially affect the health insurance market. (p. 28).

In analyzing this issue, the Court concluded that the mandate was a constitutional exercise of Congressional power under the Commerce Clause found in the U.S. Constitution. The Commerce Clause provides that the federal government may regulate interstate activity, including activity that substantially affects interstate activity. The Court began its analysis by explaining that the Commerce Clause authorizes Congress to address national economic problems by regulating the actions of millions of individuals that, combined, can impact national economics:

The shift to the “substantial effects” doctrine in the early twentieth century recognized the reality that national economic problems are often the result of millions of individuals engaging in behavior that, in isolation, is seemingly unrelated to interstate commerce. [ ] That accepted assumption undermines appellants’ argument; its very premise is that the magnitude of any one individual’s actions is irrelevant; the only thing that matters is whether the national problem Congress has identified is one that substantially affects interstate commerce. Indeed, in case after case, a version of appellants’ argument–that Congress’s power to regulate national economic problems, even those resulting from the aggregated effects of intrastate activity, only extends to particular individuals if they have also affirmatively engaged in interstate commerce–has been rejected on that basis. (p. 35)

The Court then went on to explain that Congress clearly has the constitutional authority under the Commerce Clause to regulate the health insurance industry, and that the individual mandate was a key part to carrying out that authority:

Similarly, it is irrelevant that an indeterminate number of healthy, uninsured persons will never consume health care, and will therefore never affect the interstate market. Broad regulation is an inherent feature of Congress’s constitutional authority in this area; to regulate complex, nationwide economic problems is to necessarily deal in generalities. Congress reasonably determined that as a class, the uninsured create market failures; thus, the lack of harm attributable to any particular uninsured individual, like their lack of overt participation in a market, is of no consequence. (p. 36)

That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power surely explains why Congress has not used this authority before–but that seems to us a political judgment rather than a recognition of constitutional limitations.

. . . .

The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins. (pp. 36-37)

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