A Few Angles on the Affordable Care Act and the Commerce Clause

As SCOTUSblog reports, within the next few weeks the Supreme Court will probably grant certiorari in one or more of the cases challenging the Patient Protection and Affordable Care Act (ACA).

The petitions present numerous issues, but the big question is the constitutionality of ACA’s individual minimum coverage requirement under the Commerce Clause and the taxing power.  (The ACA Litigation Blog predicts a staggering 99% chance that the Court will grant cert on this issue.)

A few amicus briefs filed in the courts of appeals (all arguing that the ACA should be upheld) delve into some of the less well-known aspects of the Commerce Clause question, illuminating legal and policy considerations the Court may well take into account in its eventual decision.   

California and other states submitted a brief outlining how Congress’s Commerce Clause authority interacts with states’ powers and responsibilities.  For example, the brief observes that the minimum coverage provision offers relief for states:

As a result of the minimum coverage provision, California will no longer be forced to pay the 5-7 percent of public hospitals’ operating expenses that resulted from treating uninsured individuals.  Nor will Maryland be forced to add a 7 percent surcharge to all hospital bills to cover such uncompensated care.

The National Women’s Law Center (my former employer) and other amici point out that the ACA is a civil rights law: “[T]he ACA seeks to address a national problem, one that not only has an economic and commercial dimension, but also implicates inequality and sex discrimination that our nation has a moral and social obligation to address.”  The brief emphasizes that, under a long line of Supreme Court precedent – dating back to Heart of Atlanta Motel v. United States – the Commerce Clause empowers Congress to regulate discrimination in interstate commerce:

[T]he ACA, like the civil rights laws that preceded it, recognizes that inequality and sex discrimination themselves have a significant economic impact and that addressing these economic consequences requires confronting inequalities and discrimination.  Thus, by regulating commerce in health insurance and health care, the ACA also takes an important step to ensuring equality of access to health care – forwarding fundamental civil rights principles of equal treatment and equal opportunity.  This only enhances Congress’s Commerce Clause power to enact the law.

And the American Association of People with Disabilities brief  argues that the ACA relates to interstate commerce because it prevents “job lock,” which results when individuals “forego a job opportunity because of fear that they will be uninsured if they leave their current job.”  Specifically:

Excluding individuals with pre-existing conditions from coverage stifles entrepreneurship; it leads workers to choose large employers over promising young companies; it forces workers to limit their career path to jobs which offer health benefits; and it discourages workers from going where their talents lead them.  By eliminating such exclusions in the individual market, the ACA will significantly reduce – if not eliminate altogether – these substantial burdens to interstate commerce.