The constitutional challenge to the 2010 Affordable Care Act (ACA) draws much of its rhetorical force not from the Commerce Clause, but from the perception that the insurance mandate infringes on individuals’ private liberties.
Taken alone, the libertarian argument that the government cannot order private citizens into a healthcare insurance contract with a third-party is something of a legal nonstarter. Such a private liberty claim would have to be brought under the 14th Amendment. Were that issue even before the Court, it would almost certainly fail. The Supreme Court essentially stopped recognizing economic rights under the 14th Amendment guarantee of substantive due process in the late 1930s. This liberty-based concern might be the more authentic motivation behind the challengers’ lawsuits, but it’s largely a policy argument that belongs in the political realm.
With respect to the Commerce Clause — the challenge actually before the Court — the relevant question is whether the individual mandate exceeds Congress’ ability to regulate interstate commerce. The Supreme Court has made clear on several occasions, including recently in the 2005 Gonzales v. Raich decision upholding a federal ban on homegrown marijuana, that Congress’ power extends to activities that “substantially affect interstate commerce.” By some estimates, health care spending in the United States exceeds $2.7 trillion dollars, constituting over 17% of the American economy. Regardless of how one feels with respect to the individual liberty arguments, the mandate’s impact on interstate commerce is enormous.
