[MUSIC] We've now come to the last class of the course. We're going to talk another recent controversy, the constitutionality of health care reform, ObamaCare. But it's also going to illustrate a lot of the themes we've been talking about. It's going to bring up issues of federalism, of individual rights and state's rights and questions about how the constitution changes and how courts should interpret it. Health care reform is of course a huge and massively complicated topic. The Affordable Care Act, the law the Supreme Court considered in the case of National Federation of Independent Businesses against Sebelius is thousands of pages long. But the Supreme Court's decision came down to just a few issues. In fact, we're basically only going to talk about one. What's called the individual mandate. What is the individual mandate? This requires a little bit of background. For decades, people have been trying to reform the American health care system. They wanted to improve it in all sorts of ways. Make it better and cheaper and easier to navigate and so on. But one big thing they wanted to do was reduce the number of uninsured people. Why did some people not have health insurance? Well, some people couldn't afford it. Some people just didn't want it. But, one main reason people lacked at was that no insurer would insure them because of some preexisting condition. These people were already unhealthy, and insurers thought they would incur a lot of health care expenses, so the insurers didn't want them as clients. And one that ObamaCare did was to tell insurers they couldn't do that anymore. You can't deny people coverage on the basis of a preexisting condition. That's what's called the guaranteed issue provision. It is guaranteed that an insurer will issue you an insurance policy. But guaranteed issue by itself isn't necessarily going to reduce the number of uninsured people. In fact, it might increase it. Here's why. Once people know that they can get insurance, that they can't be denied for a pre-existing condition, they might decide they can wait to get it until they actually need it, until they get sick. That's a problem. Because if only sick people get insurance, the insurance companies are going to have to charge more money for it. And the whole point of an insurance program, that costs get spread among the people who end up needing it and also the people who don't is lost. So ObamaCare also had a provision requiring everyone, with a few exceptions, to buy insurance or pay a penalty. That's the individual mandate. It mandated that individuals buy insurance policies. And that individual mandate was the main focus of constitutional objections to the act. What were those objections? If I just say to you, the federal government can't make me buy something I don't want, that might sound like an individual rights argument. That I have a right against being forced to buy something. Just like I have a right against being forced to say a prayer or to recite the Pledge of allegiance. But it's actually not, there is no such right. Governments both the states and the Federal Government make people buy things relatively frequently as a condition of engaging in certain activities. And insurance is actually one of those things. The argument against the individual mandate wasn't that the government can never make you buy something you don't want. But rather, that doing so under these circumstances went beyond the limited powers of the federal government. In particular, that it couldn't be justified as an exercise of the power to regulate interstate commerce. In order to decide whether that was a good argument, you have to know what the supreme court has said about the commerce power. And that turns out to be it's own complicated story. Twisting and turning over the century since the foundant. But here's the general outline. Over time, the powers of the federal government have grown. Occasionally, the Supreme Court has tried to push back against that growth, most notably when it resisted President Franklin Roosevelt's New Deal programs in the 1930s. But the court backed down then. And from about 1935 to 1995, it seemed that Congress could actually do most anything it wanted with the commerce power. Congress could regulate anything that substantially affected interstate commerce, the court said. And almost everything does. In 1995 though, things seemed to change again, at least a little bit. The Supreme Court said that Congress couldn't regulate intrastate non-commercial activity. If you don't cross a state line and you're not engaged in commerce, buying or selling things, then Congress can't regulate it, the Court said. Unless, it added in 2005, that regulation is part of a larger scheme that does aim at commercial activity. The 2005 case was about marijuana. And what the Court said was that even though mere possession of marijuana isn't economic activity. And even though people might be growing their own and not crossing state lines, Congress' attempt to stamp out the interstate market for marijuana, allowed them to prohibit mere intrastate possession as well. So that was the state of the law at the time the challenges to the individual mandate came along. Congress could regulate anything that substantially affected interstate commerce. Except perhaps intrastate noncommercial activity. How does the individual mandate look from this perspective? Well, if you ask constitutional law professors and reporters did, the answer was clear. The individual mandate was plainly constitutional. That was the overwhelming view of law professors. Not the unanimous view, but the large majority. And I thought that too, I should admit. I said so to some reporters. The reason that law professors thought this, was that there were two pretty straightforward arguments as to why the individual mandate was okay under the court's current approach to the commerce power. First, Congress said, people who don't have insurance are engaged in commercial activity. They get healthcare. They do this typically by going to emergency rooms when they need to, and they get treated there even though they sometimes can't afford to pay for that treatment. Uninsured people incur $47 billion a year of medical costs that they don't pay for. Which means that doctors and hospitals have to absorb that loss, or pass it on to insured people by charging them more. So, there's a substantial effect on interstate commerce. Second, Congress said, this is part of a regulation of insurance companies. Insurance companies are obviously engaged in interstate commerce. And we've told them that they have to issue insurance to anyone who asks for it, regardless of whether they have a preexisting condition. But in order for that regulation to be effective, we need to make people buy insurance before they get sick, which is what the individual mandate does. So, quite apart from the question of whether congress can regulate uninsured people on the basis of their emergency room use, Congress can defend the individual mandate as part of a comprehensive scheme to regulate insurance companies. I said those arguments are pretty straight forward and I think they are. That's what most law professors thought. But the Supreme Court disagreed. Congress can't regulate uninsured people on the grounds that they use emergency rooms, it said, because not all of them do. It's unpredictable when, if ever, a particular uninsured person is going to go to an emergency room. And as for the argument that the individual mandate is part of a regulation of insurance companies, the court said that it's too important to be justified as part of a larger scheme. That would be letting the tail wag the dog, basically. So the Supreme Court said that the individual mandate couldn't be justified as an exercise of the commerce power. They split 5-4 on that issue, and the five voted against federal power. But the Court didn't strike down the individual mandate. Chief Justice Roberts who was part of the five who voted against the commerce clause justification did believe that Congress put an act of individual mandate based on a different source of power. The taxing power. So ObamaCare survived. But his challengers did win on the issue of the commerce power. That may not have a huge amount of practical significance. Congress probably won't have very many occasions in the future, when it will want to make people buy commercial products. And if it did, it could always just use tax dollars to buy those products and then give them to people. This is a point that's worth expanding on a little bit. One of the arguments that opponents of the individual mandate kept making was the broccoli hypothetical. If we let Congress make people buy insurance they said, by the same logic, Congress could make them buy broccoli, and that would be terrible, unimaginable, and any constitutional theory that would let Congress do that must be wrong. The defenders of ObamaCare tended to respond by saying that broccoli is different from health insurance, which it is, because we don't have broccoli emergency rooms, where every year people show up and eat $47 billion worth of broccoli that they can't pay for. But the better response is probably that the government already has the power to do this. It can take your tax dollars and give them to broccoli farmers on the condition that those farmers ship some broccoli to you. That's exactly the same thing as making you buy broccoli. And, in fact, the government does this kind of thing all the time. They take your tax dollars and give them to various industries. Like car makers, or wall street, or farmers. The only difference is that you don't get any thing in return. So we already have something very much like the requirement to buy broccoli, except that you don't even get the broccoli out of it. But back to the point about the commerce power. The opponents of ObamaCare won on this I said. Despite the fact that many law professors, me included, were confident they would lose. How did that happen? The answer is not that law professors don't understand the law. It's that the law changed around them. When the idea of the individual mandate was first floated back in the 1990s, it came from a conservative think-tank, the Heritage Foundation. And it was presented as a way to give people more choice than if the government simply decided to come up with its own insurance plan, and give that to everyone. A way to promote individual freedom, and let the market work. In the 1990s, no one suggested there was any constitutional problem with this idea. But in 2010, the idea looked different to people. It didn't look like an attempt to give individuals more choice. It looked like the imposition of government authority on people who were just trying to stay out of the insurance market, people who weren't doing anything that would justify the federal government taking charge of this important aspect of their lives. People started talking about it that way, and people's views shifted. And judges and supreme court justices responded to that shift. So what happened with the individual mandate is very much like what happened with school segregation or with bans on interracial marriage, or like what's happening right now with bans on gay marriage. Something that use to look Constitutionally okay, starts looking questionable. Social movements, political movements, challenging, making their challenge in the language of the Constitution, and courts respond. And what that means is that this Constitution is very much your Constitution. Today's conventional wisdom can be wrong. In 20 years or ten years, or even five. Because ultimately, it's not the founders who decide how these questions come out, it's not the founders, and it's not the Supreme court either. It's we the people. It's you. [MUSIC]
