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The constitutionality of the ACA is not a close call

John Kroger is the Attorney General of Oregon. John has devoted his entire life to public service as a United States Marine, federal prosecutor, public policy expert, and teacher.  He received his bachelor’s and master’s degrees in philosophy from Yale University and his law degree with honors from Harvard Law School. Prior to his election, he served as a law professor at Lewis & Clark Law School in Portland.  To view the SCOTUSblog healthcare symposium in its entirety, click here.


To the casual reader, the debate over President Obama’s Affordable Care Act suggests that the constitutionality of the law is a close call. I do not think that is the case. As I testified before the U.S. Senate in February, I believe the law is clearly constitutional. The reason for my confidence is simple. Under our Constitution, laws are presumed constitutional. The burden – and it is a significant one – is on the opponents to prove that the law is constitutionally flawed. The four major arguments they have raised so far have come nowhere close to meeting that burden.

The first argument raised by opponents of the Act is that the Commerce Clause, by its own terms, only regulates commerce. Declining to get health insurance, they argue, is not commerce but rather refusing to engage in commerce. Therefore, they conclude, it falls outside the power of Congress to regulate. This argument is exceptionally weak. It was explicitly rejected in Gonzalez v. Raich, a 2005 case in which the Supreme Court held: “Congress can regulate purely intrastate activity that is not in itself commercial.” That holding was stated not just in the majority opinion, which Justice Kennedy joined, but also in Justice Scalia’s concurrence.

This argument by the Act’s opponents is not just wrong, but dangerous. The Gonzalez opinion provides the constitutional foundation for federal criminalization of the home production and use of child pornography as well as dangerous drugs like methamphetamine. As a former federal prosecutor, I think overturning Gonzalez would be a disaster.

Opponents’ second argument is based on the so-called activity/inactivity distinction.  In Perez v. United States (1971) and subsequent cases, the Supreme Court spoke of the Commerce Clause regulating commercial activities.  Opponents of the Act use this language to raise a truly novel argument – that the Constitution prohibits the regulation of inactivity. Opponents of the legislation claim that declining to buy insurance is not an activity but inactivity, and thus outside Congressional power to regulate. There are three serious flaws with this argument.

First, the inactivity/activity distinction has absolutely no basis in the text of the Constitution. Second, the Court recognized in both Wickard v. Filburn (1942) and Carter v. Carter Coal (1936) that Congress can regulate not only activities but “conditions.” By any reasonable definition, having more than forty million citizens without health insurance is a “condition” that Congress can regulate. Finally, people lack insurance because businesses choose not to offer it to their employees, insurance companies decline to extend it for pre-existing conditions, and people refuse to select it and pay for it – some out of choice, some because they cannot afford it. All of these are actions with real-world and often very tragic consequences. The constitutional fate of a great nation cannot be decided by semantics and word games that label real-world actions as inactivity.

The opponents’ third argument, which some lower courts have adopted, is that the Supreme Court has never interpreted the Constitution to allow Congress to force individuals to buy a product. This argument conflicts with the founders’ intent and it has been explicitly rejected by the Court. Shortly after the Bill of Rights was ratified, the Second Congress adopted the Militia Act of 1792. This law required every free able-bodied white male citizen to provide himself at his own expense a good musket or flintcock, a bayonet and belt, a knapsack, a pouch, and a box of sufficient size to carry not less than 24 cartridges. Even the most resourceful pioneer would have needed to purchase a product or two to comply with this law.

Nearly 150 years later, a farmer argued in Wickard v. Filburn that the Agricultural Adjustment Act would unconstitutionally force “some farmers into the market to buy what they could provide for themselves.” This claim is identical to the one that opponents have raised in the Affordable Care Act litigation: people should not be and cannot be forced to buy a health insurance product. Writing for a unanimous Court, Justice Jackson rejected the claim, stating that these kinds of questions “are wisely left under our system to resolution by the Congress.”

Finally, critics of the Affordable Care Act claim that the personal responsibility mandate impermissibly interferes with constitutionally protected liberty. This argument ignores the Constitution and reality. Right now, we have forty million Americans who do not have health care coverage. Those forty million people have the legal right to go to a hospital emergency room, and hospitals are legally required to provide that care. As a result, hospitals rack up over forty billion dollars of unpaid health care costs every year that the rest of us pay in higher taxes and insurance premiums. The Affordable Care Act’s personal responsibility mandate ends this massive cost-shifting. The idea that the Constitution bars this solution is bizarre, because the Constitution does not create or protect the freedom to freeload. Simply put, there is no constitutional right to force other people to pay for your health care when you decline to take responsibility for yourself.

Recommended Citation: John Kroger, The constitutionality of the ACA is not a close call, SCOTUSblog (Aug. 3, 2011, 5:30 PM),