Is the Patient Protection and Affordable Care Act unconstitutional? U.S. Federal District Judge Henry Hudson says so, but I think he is clearly wrong. Congress requires that persons purchase insurance if they can afford it and penalizes them if they do not. This requirement is necessary to contain costs and make the act work because Congress is also requiring insurance companies to insure people with health risks that they would not otherwise insure. Those insurance companies need the premiums of those who would prefer to gamble that they will not need insurance in order to make up for the risky patients they have taken on. In addition, the failure of healthy people to carry insurance and relying on emergency rooms has ripple effects throughout the health care system.
Judge Hudson maintains that Congress does not have the power to do this. One of the cases that stands in his way is Wickard v. Filburn. Congress set up a system of wheat quotas to assure the stability of prices in the wheat market. Filburn exceeded his quota in part to grow wheat for home consumption. The government argued that if the Filburns of the world were permitted to do this, the quota system would not work. The point was not that Filburn himself or his intrastate act was a threat, but the aggregate impact of farmers exceeding their quota would undermine the Congressional scheme. Similarly, with the health care act, the aggregate impact of people not buying insurance would not only have ripple effects throughout the system, but also force insurance companies to raise premiums because of the increased risks in their pool. Congress has to regulate this in order to make its scheme effective. (Nor, by the way, is there a due process right to grow wheat for home consumption or a due process right not to buy insurance).
Judge Hudson distinguished Filburn on the ground that Filburn engaged in action and those who do not purchase insurance do not engage in action. But this distinction does not make a difference. The point is what Congress needs to regulate (or would be helpful to regulate) in order to regulate interstate commerce. Indeed, as Michael Dorf points out at Dorf on Law, if Judge Hudson’s analysis were correct, Congress would have no power to control secondary boycotts which it has done for years without any commerce clause issues being raised.
In my mind, Judge Hudson’s analysis is indefensibly partisan. Other courts have rightly rejected the argument he has accepted. Fortunately, there is time to cure his error because the relevant provisions do not go into effect until 2014. The question is whether a partisan Supreme Court will distort prior decisions in this area in order to achieve a result that Republicans want.