Zero Hour Approaches for Health Care Law

In the last week of ths month all but the comatose will be riveted to an unprecedented three days of arguments before the Supreme Court during which it will consider the thorniest and most far-reaching issue since Brown v. Board of Education: the Patient Protection and Affordable Care Act. More frequently spoken of as Obamacare, the question is whether it should be struck down in whole or part as being unconstitutional.

The Act mandates that everyone buy health insurance, or be fined. In return, it stipulates that insurers must accept all comers irrespective of prior conditions and that insurers cannot cancel the coverage of anyone taken ill. To prevent insurance companies from being overwhelmed by the cost of those with health problems, driving up premiums astronomically, the requirement that everyone, including the young and healthy, pay into the system to spread those costs is essential to the Act’s solvency.

The linchpin is the Commerce Clause of the Constitution. All it says, under Section 8 of Article I, is that Congress shall have the power:

To regulate Commerce with foreign Nations and among the several States, and with the Indian Tribes

Which is the case with insurance. Insurance is a state matter. We buy health insurance from state-licensed companies. The transaction is therefore intrastate, not interstate. So in requiring us to buy insurance, the health care act famously reaches into states to require us to make a transaction that is within a state and not “among” states and therefore, according to 26 states that have sued to overturn the law, out of the bounds of the Commerce Clause.

Lawyers for the government therefore have a problem. As arguments for the legality of the Act, they have searched for precedents whereby the government has in the past found ways to circumvent this restriction, but what they have come up with is slim indeed. The ruling most often mentioned is 1942’s Wickard v. Filburn, which held that a farmer’s wheat crop could be regulated even though grown solely for his family, because even a crop grown for personal consumption affects demand in the national marketplace. Good luck basing the one-sixth of the national economy that health care represents on that one.

We’ll return to this after a sidestep to an entirely unrelated subject:

The minimum wage was first mandated in 1938 to prevent worker exploitation during the Great Depression. As set by Congress, it has done a poor job of staying apace with either poverty levels or the dollar, and has always been less than the government-defined poverty level, but it nevertheless has been continually in force for all these years.

Another excursion into the unrelated:

In Federal Election Commission v. Citizens United, the Supreme Court ruled in 2010 that corporations have an unlimited right to contribute to entities that deal in political speech because corporations are considered to be “persons” in the eyes of the law, and therefore have the 1st amendment right of free speech. The Court didn’t just suddenly declare corporations to be persons. They did that long ago in Santa Clara v. Southern Pacific Railroad (1886). In Citizens United, the Court only expanded corporations’ rights as persons.

To pull these disparate threads together:

What government lawyers have is a continuous and elephantine precedent that has gone entirely unnoticed: three-quarters of a century of the federal government compelling corporate “persons” to pay — interstate and intrastate — no less than the minimum wage to their employees. Put another way, to "buy" their employees' services and pay more than they might have preferred. Lawyers arguing for the Affordable Care Act should turn the precepts laid down in Citizens United back against the Supreme Court and insist that the minimum wage precedent applies. The Court cannot very well deem corporations persons in one case but not in another. The individual mandate should go forward.