Ari Ezra Waldman | Health | Law - Gay, LGBT | News

The Constitutionality of the Affordable Care Act, Gay Edition


During the Supreme Court's extended hearings on the constitutionality of the Affordable Care Act, the media has spoken a lot about the meaning of the words "tax" and "penalty," the applicability of an obscure Nineteenth Century law called the Anti-Injunction Act, the federal mandate, "Romneycare," the supposed exceptionalism of the health care market, and, of course, broccoli. One angle that won't get much play is the unique role that HIV-related health care could play in determining that one of President Obama's signature legislative achievements is constitutional.

SchoettesScott Schoettes, HIV Project Director at Lambda Legal, wrote a highly regarded amicus brief in the health care case in which he argued that the individual mandate is constitutional because it is a "necessary and proper" move to ensure nondiscriminatory access to health care. Mr. Schoettes took us through the argument in a recent post at The Huffington Post

Congress has the power to address the exclusion of a particular group -- specifically people living with HIV, but more broadly anyone with a pre-existing condition -- from a market that operates in interstate commerce. But the ban on pre-existing condition exclusions will not work without the accompanying individual mandate, which requires every American to become a part of the health care insurance pool regardless of their current health status. For that reason, the individual mandate is a necessary and proper means by which Congress can effectuate its clearly constitutional power to regulate an interstate market under the Commerce Clause.

Mr. Schoettes's view is that the individual mandate is a lawful use of Congress's Constitutional powers to prevent invidious discrimination in an interstate market. On its face, this argument has little to do with health care per se, which would seem to let us bypass the economic and slippery slope arguments that seem to have consumed the Court's questions so far. It is similar to the argument Kathleen Sullivan made on behalf of the California Endowment, an organization aimed at expanding health coverage in California. Ms. Sullivan wrote an amicus brief stating that Congress's power to pass the individual mandate is a necessary and proper means of preventing or repairing market failure in interstate commerce. Discrimination, or a systematic denial of health coverage, is one form of market failure.

Today, I would like to evaluate Mr. Schoettes's argument and argue that its doctrinal precision offers a possible response to conservative economic arguments against the constitutionality of the individual mandate.


The individual mandate is the ACA's requirement that almost everyone buy health insurance or pay a penalty. This serves two functions: First, by definition, it achieves near universal coverage, which was a social goal articulated by President Obama and Congress. Second, it allows the ACA's most popular provision -- the ban on denying coverage to consumers with pre-existing conditions -- to function. Without everyone -- young and old, healthy and unhealthy -- in the pool, it would be prohibitively expensive to ensure the most vulnerable among us who need health care the most.

ScTo many progressives, that sounds like good policy; but, that's a question for Congress. This week, the Supreme Court hears argument on the constitutionality of that policy, whether you think it's good or bad. And, the law's constitutionality depends on finding an enumerated power in the Constitution that allows Congress to require all citizens to buy health insurance. For states, like, say, Massachusetts, there is no such problem: States have what we call the "police power," or a general grant of power to pass laws, regulate behavior, or enforce order for the betterment of their citizens. The United States Congress has specific enumerated powers in Article I of the Federal Constitution, so any Congressional action has to be based on one of those powers. This is why states can mandate that we all buy car insurance without having to go through this debate.

The conventional progressive wisdom is that Congress's power to require nearly everyone to buy health insurance comes from the Commerce Clause, which allows Congress to regulate interstate commerce. The argument uses the language of economics (we are, after all, talking about markets), but it is pretty simple, even for the econo-phobic: The refusal to buy health insurance not only significantly affects the insurance market for everyone else (by putting upward pressure on prices), but not buying insurance is, perhaps counterintuitively, a form of economic activity. Those freely electing to be uninsured are making decisions about the cost of consuming health care services relative to the cost of consuming health care insurance, gobbling up the former when they need to, paying for it however they can, while rejecting the latter. Therefore, the individual mandate is a "necessary and proper" exercise of Congress's power under the Commerce Clause.

The Supreme Court has previously held that nonactivity is economic activity for the purposes of the Commerce Clause. In Wickard v. Filburn (1942), a wheat farmer wanted to grow more wheat than the federal government allowed after it passed a limit on wheat production per acre in order to drive up prices during the Depression. Even though the farmer said he was growing it for his own consumption, i.e., not for sale on the market, the Court held that Congress could shut him down: Growing extra wheat for yourself took you out of the very market Congress was trying to prop up. One wheat farmer might have no impact on demand, but if all wheat farmers grew their own, no one would buy any wheat on the market, slashing demand and destroying the industry. Since the "total incidence" of consumers not participating in the wheat market "poses a threat to a national market, [Congress] may regulate the entire class." (Gonzales v. Raich (2005)).

LambdalogoLambda Legal's argument for the constitutionality of the ACA is a little different. Mr. Schoettes reminds us that people living with HIV have been "systematically excluded from the health-care insurance and health-care markets." More than 67 percent of the population has private health insurance, but only 17 percent of HIV-positive individuals do. The remainder fall under Medicare, Medicaid, and the VA, nearly 30 percent are under-insured or go without insurance. This means that, on average, people with HIV go longer without care, suffer complications, and die at too high rates, with all these devastating effects more pronounced in traditionally marginalized groups, including the LGBT, poor, and black communities.

In the current health care industry context, the only way under-insured HIV-positive individuals can get insurance is through a regime that prohibits insurance companies from denying coverage to people with pre-existing conditions, which, as discussed above, only works with an individual mandate. Therefore, the mandate is a necessary and proper exercise of Congress's Commerce Clause power not because consuming health care and buying insurance affects the price of both, but rather because Congress can use its power to fix an interstate market's discriminatory effect.

BroccoliThis theory merits strong consideration, especially because it silences some the conservative economists' arguments against the progressive conventional wisdom. 

To the progressive argument that the health care market is unique, justifying regulation because of its eventual necessity in everyone's life and the requirement that all hospitals provide service regardless of the patient's ability to pay, conservatives say that the market for health care is no more unique than the market for food, which we are more likely to consume. Indeed, it's hard to see a limiting factor in a market's supposed economic "uniqueness;" all markets are somehow unique economic animals. But, while conservative economists poo poo the second uniqueness factor -- the fact that hospitals have to provide health care services to all -- as "circular," previous lawful Congressional regulation does make the market for health care different. Just because Congress created that difference doesn't de-legitimize the constitutionality of subsequent regulations necessary because of the original Congressional action, especially when the original Congressional action was constitutional.

And, as Mr. Schoettes points out, the health care market might also be unique because, without the ACA's individual mandate, the market excludes a particular subgroup of the population that needs health care and would be discriminated against because of the pre-existing condition that defines the group. When other interstate markets function in a discriminatory manner, the federal government has the power to step in pursuant to its powers under the Commerce Clause, the Equal Protection Clause, and the Due Process Clause.


Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

Follow Ari on Twitter at @ariezrawaldman.

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  1. While I don't agree with the ACA as it was written and passed, this is an excellent, impressive defense of the individual mandate. I'm almost swayed.

    Posted by: Bill | Mar 28, 2012 1:16:10 PM

  2. i was listening last night and i was very troubled....
    it just seems, from Scalia's own words and tone, that he's smugly self-satisfied in giving "loophole excuses" that don't make intellectual sense.

    it was disheartening, to say the least.

    Posted by: LittleKiwi | Mar 28, 2012 1:44:31 PM

  3. People with pre-existing conditions of every type need to speak up!

    I for one have Crohn's disease my treatments runs eight thousand every eight weeks it's an infusion and I'm sure the drug is inflated by the drug company but they hold the cards.If this pre-existing thing goes down in flames ALOT of people with all types of pre existing will be at the complete mercy of the insurance companies. And believe me that may become a life and death situation for many of us with these conditions.

    Some price to pay for broccoli...insulting and insensitive!

    Posted by: SOLUS | Mar 28, 2012 1:46:40 PM

  4. @SOLUS: i know a little about what youre going through. i also have crohns disease, but thankfully im doing well (knock on wood!). i wish you the best of health! the pre-existing condition hook has affected my life in countless ways, as well.

    Posted by: Ari Ezra Waldman | Mar 28, 2012 1:50:16 PM

  5. Yes, was Scalia who made the broccoli comment.
    I wish him a walk in my shoes and all the others like me!

    Posted by: SOLUS | Mar 28, 2012 1:51:20 PM

  6. Yes,it was Scalia that made the broccoli comment.
    I wish him a walk in my shoes... and others like mine!

    Posted by: SOLUS | Mar 28, 2012 1:54:39 PM

  7. Rejoice, for this article does away with the constitution in one fell swoop. Then what *can't* congress do if this is upheld?

    It saddens me that the "gay" view that of a congress with unlimited powers to compel anyone to do anything.

    Posted by: joe | Mar 28, 2012 1:54:46 PM

  8. as a canuck, and one who spends 6 months of the year living in the US, i can safely say that the depiction of universal healthcare from american conservatives is false.

    i always hear on the US news things like "the government will tell you what doctor you can see!!!!" uh, no.

    and what does the US have now, anyway? companies that dictate whether or not they'll cover you, and how much, based on how much MONEY they'll save as company, as opposed to what will be in your best health interests?

    a healthcare system that is run for profit is an affront to human decency.

    Posted by: LittleKiwi | Mar 28, 2012 1:55:53 PM

  9. I believe the Supreme Court not long ago ruled that the Federal government may, under the Commerce Clause, prohibit a private citizen from growing marijuana on her own property for her own private use, in a state whose laws allow for such private gardening. How that could be Constitutional, when NO COMMERCE, interstate or otherwise was involved, and a health insurance mandate would not be, is a contradiction they shall have to address. If they don't, then this whole exercise will be proven to be an entirely political, not legal question.

    Posted by: RWG | Mar 28, 2012 1:58:36 PM

  10. @EZRA
    Thanks,Glad you are dong well!
    I am doing well for now as long as I can keep affordable health insurance to fight this. All of us should have that right!

    Posted by: SOLUS | Mar 28, 2012 2:00:31 PM

  11. @JOE
    What is your solution?

    Do you carry health insurance?
    If not, should you get sick do just go to the ER for treatment?
    How would you pay your medical costs . They can and are VERY expensive out of pocket!
    If you don't pay the tax payers pays!

    Posted by: SOLUS | Mar 28, 2012 2:11:56 PM

  12. @Ari: Was hoping you would post something on this... thanks. I keep hearing in the media how most people aren't happy with ACA - and I'm one of them. I think what is being left out is that many people (as I) don't think the law went far enough. I personally would have preferred single payer or at least a public option. I view the individual mandate as a compromise with the conservatives... and find it ridiculous that the conservatives are now arguing against something which was their idea in the first place. As imperfect as the ACA is, at least it is a start. I certainly hope it is upheld; otherwise we're going to be thrown into insurance hell as the healthcare industry spins completely out of control.

    Posted by: MikeH | Mar 28, 2012 2:17:10 PM

  13. anti-abortion folks seem to be ignoring the reality that having a baby in a hospital, for an uninsured woman, costs thousands upon thousands of dollars.

    maybe more women would *cough* "choose life" if it didnt' put them in a financial hole.

    just saying.

    Posted by: LittleKiwi | Mar 28, 2012 2:17:40 PM

  14. Very interesting analysis, thank you.

    I can't help but be uncomfortable though when you talk about progressive and conservative positions. I know you're referring to the court, but I can't help but remember that the mandate is an idea borne out of a conservative think tank and originally espoused by Republicans during the Clinton administration. Universal healthcare is a progressive idea. A mandate - designed primarily to keep the profits rolling in to the insurance industry - is a conservative idea. I know I'm talking politics and not law, but I can't help but wonder how this court would have reacted to the individual mandate if it had be brought in by a Republican President from a Republican congress. I think it likely that the positions - at least most of them - would be reversed.

    So, isn't this really about nine justices looking for legal footing to support personal politics - as opposed to law or even ideology?

    Posted by: marshallt | Mar 28, 2012 2:24:33 PM

  15. @marshallt: youre right to point out that those terms are misleading and oversimplications. but, we still need a linguistic hook for categorizing sides of a debate. i speak of conservative economists and the progressive legal view in the current context only. but youre absolutely right; it is the height of disingenuousness for republicans to be opposed to the mandate as a matter of policy bc they came up with it!!

    Posted by: Ari Ezra Waldman | Mar 28, 2012 2:28:50 PM

  16. i'm as troubled by a group who receives government-funded healthcare deciding whether everyone else should get it as disingenuous as a group of plebes at the MPAAA deciding what "other people" are allowed to see in a film before it's released.

    Posted by: LittleKiwi | Mar 28, 2012 2:44:31 PM

  17. "Rejoice, for this article does away with the constitution in one fell swoop." JOE

    Apparently Joe has a pre-existing reading comprehension condition, as the entire argument of the post is framed by a consideration of how the Commerce Clause in Article I works, how it has been interpreted in earlier decisions, and why the mandate should be deemed necessary and proper. The Constitution appears in almost every sentence. Given the care Ari (and Mr. Schoettes) takes in making the case in so little space, Joe's s-s fallacy (if this then anything) is especially inane. But for those of us who see that name pop up in the comments regularly, are we really suprised?

    Posted by: SRB | Mar 28, 2012 2:45:56 PM

  18. @SRB, what, surprised that he takes a cowardly GOP-suckup position? no not at all. some folks are professional doormats.

    and oddly proud of it...

    Posted by: LittleKiwi | Mar 28, 2012 2:54:02 PM

  19. The individual mandate is dead. Of that, I have little doubt. It's Obama's fault for turning it into a "get health insurance or get fined", like it's illegal not to have insurance. He should have made getting insurance easier, like making it impossible for insurance companies to reject people for catch-22 reasons, which encompasses virtually every reason for rejection. But since neither he nor Congress were smart enough to do that, the individual mandate is DOA.

    But for all the liberals, you should rejoice. That would take away a major argument against Obama for Republicans.

    Posted by: Matt | Mar 28, 2012 3:03:03 PM

  20. Ari, from the get-go, the premise that the outcome depends "on finding an enumerated power in the Constitution that allows Congress to require all citizens to buy health insurance" is erroneous - it buys into the conservative view of the case.

    As Justice Breyer explained succintly in the oral argument yesterday, the question under the commerce clause jurisprudence is not really the method Congress chooses to regulate the activity at issue. The question is whether what Congress is regulating is economic activity in nature or not. Thus, in the gun control case, the Supreme Court found that regulating guns nears schools was not allowed under the Commerce Clause because having a gun near a school was not economic activity. Similarly, in Morrison, the Court said that beating up a woman was not economic activity, thus it wasn't within Congress's power to step in.

    Note that the way in which Congress stepped in was not an issue in either case. In the gun control case it was the creation of a federal crime. In Morrison it was the creation of a civil right of action.

    In Wickard, the question was whether the farmer's growth of wheat was economic and sufficiently intrastate to come within the power of the Commerce Clause. The answer was yes, by looking at the aggregate. In that case, the Court upheld what the Congress did: Prohibit Wickard from producing more wheat (which was for his own internal consumption, not for sale) - THUS EFFECTIVELY FORCING HIM TO PURCHASE WHEAT FROM PRIVATE PARTIES TO MEET HIS OWN PERSONAL NEEDS.

    The Court has already upheld a law that effectively required the local guy to buy something.

    The only Commerce Clause question, therefore is: is this economic activity? Not "does the Congress have the power to force you to buy something." Stating that question buys into the conservative, misleading spin on the constitutional question at issue before the Court on a COMMERCE CLAUSE CASE.

    If this were a challenge, say, under the due process clause, or under the ninth amendment, by a citizen saying: "The Congress doesn't have the power to order me to buy something," then, yes, the question before the Court would be as you state it.

    But it's a commerce clause case. Stating the question as you do almost assumes the answer is no, which is why it is imperative that you not fall into the conservative trap of writing it that way.

    Justice Breyer will explain this clearly in his dissent, is my case.

    Posted by: Jorge | Mar 28, 2012 3:09:25 PM

  21. The current law will hardly create a Canadian style single payer system. It's a crazy hodgepodge of ideas that will never work. The constitutionality of it is almost secondary. As to the mandate, everyone loves the constitution when it supports their policies and hates it when it doesn't, but direct their anger at the Supreme Court, which uses a kind of judicial witchcraft to arrive at its various rulings. As to disease coverage, in Europe they generally have bureaucrats that decide the amount of care any particular disease will get. No disease will be ignored, but some will be ignored more than others. The actual market for healthcare services is infinite because people would rather not die.

    Posted by: anon | Mar 28, 2012 3:15:44 PM

  22. I am trying to follow all this these comments realizing as we are commenting the courts have ended the healthcare arguments. My hope is ,but I have doubts they will be able to clearly see the many human beings their decision will impact. Should they totally gut this bill.In any case the Democrats vs Republican should have had no place in this bill or it's ruling but I fear it has will.
    Democrats have not clearly explained the need for it. So people like Joe could get it!
    Republicans just want the White house and have taken the advantage of the lack of real clear explanation and need of a bill to...Joe!

    Joe you and I are the losers in this! That you can count on so eat you broccoli stay healthy!

    Posted by: SOLUS | Mar 28, 2012 3:28:44 PM

  23. "but, we still need a linguistic hook for categorizing sides of a debate"

    "Stinking hypocritical conservatives" comes to mind. Kinda catchy, no?

    Posted by: BobN | Mar 28, 2012 4:10:59 PM

  24. I think it's funny how republicans in VA passed a law forcing women to "buy" a medical product ie ultrasound to get an abortion yet they don't like the mandate in this law. Hmmm typical

    Of course repubs will say it's a life, at that age I consider it a growth lol

    Posted by: GeorgeM | Mar 28, 2012 4:24:04 PM

  25. for once i'd love to hear people say "This is a Christian Nation!" as a "reason" for universal healthcare, instead of being anti-gay and anti-AnythingNotChristian.

    Posted by: LittleKiwi | Mar 28, 2012 4:25:24 PM

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