Thursday, April 05, 2012

Letter to SCOTUS on the Affordable Care Act

To the Honorable Justices of the Supreme Court of the United States,

I write you as a citizen out of concern that you might overturn the Patient Protection and Affordable Care Act passed by Congress and signed into law in 2010. This is the most significant piece of social legislation enacted by the federal government in my lifetime, and a great step forward in solving problems that have increasingly debilitated the health care system of our nation for many decades. It is devastating to think that such a significant achievement, executed with such thought and effort, is in peril of being dismantled by your high office. The political climate of the nation being what it is, such a decision handed down by your Court would derail health care reform for another generation, condemning millions of Americans to lack of basic care and millions more to suffering brought on by rising health care costs.

This prospect is made doubly painful by the fact that all challenges to the constitutionality of the Affordable Care Act rest on highly specious logic. In an economy where 10-15% of the price of all goods and services now represents the health care costs associated with production and distribution, it is fantastic to imagine that the Affordable Care Act falls outside of the purview of Congress' duly mandated authority to regulate commerce. While the search for a "limiting principle" that would constrain the powers arrogated to Congress by the enactment of an individual mandate is of course valid and prudent, such a limiting principle is self-evident if one examines the issue with an unbiased eye.

Opponents of the Affordable Care Act claim that if it stands, Congress will be able to compel the purchase of any commodity or service by appeal to the commerce clause. This is manifestly untrue, however. Health insurance is not fungible with almost any other form of purchasable commodity, in that health insurance is itself a form of currency for the consumption of goods and services. Because of the unique nature of the health care market, insurance (privately acquired or publicly funded) is the currency with which health care is purchased in virtually every industrialized country. By mandating that all Americans must be insured, Congress is effectively regulating and rationalizing the commercial marketplace, by mandating that citizens convert one form of currency into another form more suited to the efficient operation of the health care market.

Unless one can explain how broccoli or cell phones necessarily operate as currency within an existing market, it is difficult to imagine how Congress could justify a mandate to purchase those items on the precedent of the Affordable Care Act. One might object that a mandate to buy burial insurance would nonetheless be constitutional on this principle. Even if one conceded that the precedent of the Affordable Care Act made a burial insurance mandate "proper" under the commerce clause (and there are so many structural differences between the mortuary and health care markets that such a contention would hang from a slender thread), does anyone believe that as a matter of degree, such a mandate could be construed as equally "necessary" to the regulation of the marketplace?

Moreover, this mandate does not entail an unprecedented injunction to "positive action," because the health care market is one in which all Americans already participate. To mandate that citizens buy insurance is not equivalent to mandating that they must push an elderly person away from an oncoming bus or face sanction. Rather, if there is an imperative to positive action with which the health insurance mandate is analogous, it is an injunction that a diner must pay his or her check before exiting a restaurant on completion of a meal. Viewed in this correct light, the Affordable Care Act does not arrogate powers to Congress that it does not already possess.

Upon careful deliberation, I urge you to do what the integrity of our constitutional system demands by upholding the Affordable Care Act and securing its benefits for the citizens of the United States. I hope that this communication finds you well, and thank you for your attention on this matter.


Andrew Meyer


Anonymous said...

Sorry to hijack comments here Prof. MoC, but your 2006 blogpost on religious persecution requires some update:

I found this article because Bob Fu of China Aid, who made the false persecution allegation back then, is in the news again lately.

I hope you'll look into the facts and set the records straight.

Madman of Chu said...


If you had read my 2006 post carefully you would see that the record is already straight. Please refrain from using my blog to push your own agenda, and be more careful in future before accusing others of falsehood incorrectly.