Is the Health Care Law Unconstitutional?

Can the new health care law withstand court challenges?

Adam Freedman
4-minute read

Why Might the Health Care Law Be Unconstitutional?

The most prominent lawsuit--filed by thirteen state attorneys general--argues that the legislation is simply beyond Congress’s constitutional powers. That argument focuses on the “individual mandate,” that is, the requirement that every US citizen and legal resident purchase health insurance or face a tax penalty. That penalty starts at $95 in 2014, ramping up to $695 in 2016. 

Article One of the Constitution delegates certain specific powers to Congress; these are sometimes referred to as the “enumerated powers.” Also, the Tenth Amendment to the Constitution states that those powers not delegated to Congress are reserved to the States and the People. The attorneys general point out that health care isn’t one of the enumerated powers of Congress and, therefore, the power to regulate health care is reserved to the states under the Tenth Amendment.

Why Might the Health Care Law Be Constitutional?

The counter-argument is that the health care bill fits within Congress’s power to regulate “Commerce . . . among the several States” (Article I). That is known as Congress’s “commerce power,” and the Supreme Court has interpreted that power very broadly since the late 1930s. Generally speaking, the Court has upheld federal regulations as long as the activity being regulated will, in the aggregate, have a substantial impact on interstate commerce. 

Congress’s power to regulate commerce is very broad, but is health care “commerce?”

In the famous case of Wickard v. Filburn (1942), the Supreme Court upheld the power of Congress to regulate an individual farmer’s cultivation of wheat on his own farm for consumption by his own family. If everyone engaged in such activity, the Court reasoned, it would have a substantial impact on interstate sales of wheat. If Congress can regulate something as small as that--one may ask--can’t they regulate something as big as health care?

Other Arguments Against Health Care

But wait.  Opponents of the law still have some arguments up their collective sleeve.  First, they point out that the market in question--the market for health insurance--isn’t an interstate market. There are barriers to purchasing health insurance across state lines. Therefore, even if health insurance qualifies as “commerce,” the Court might hold that it isn’t commerce “among the several States,” as the Constitution requires.


About the Author

Adam Freedman

Adam Freedman is a lawyer and a regular contributor to Point of Law and Ricochet. Freedman’s legal commentary has been featured in The New York Times, the Minneapolis Star-Tribune, and on Public Radio. He holds degrees from Yale, Oxford, and the University of Chicago. He is the author of The Naked Constitution (2012).