Even in majority, Supreme Court justices differ on health care mandate

A majority of the U.S. Supreme Court upheld the individual mandate at the heart of the Patient Protection and Affordable Care Act, but they did so for strikingly different reasons.


Writing for the majority, Chief Justice John Roberts rejected the idea that Congress has the power under the Commerce Clause to compel individuals to buy health insurance or pay a penalty. Relying on landmark decisions as far back as Marbury v. Madison in 1803, he argued for a limited role for the federal government with only those powers specifically delegated to it. In this instance, the ability under the Commerce Clause to regulate interstate activity means there must be activity there to begin with, Roberts wrote.

“If the power to ‘regulate’ something included the power to create it, many of the provisions in the Constitution would be superfluous,” he wrote. “The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open up a new and potentially vast domain to congressional authority.”

In a strongly worded separate opinion that both concurred and dissented from the majority, Justice Ruth Bader Ginsburg wrote that while the majority was correct in upholding the constitutionality of mandatory health insurance, it should have done so because the law is clearly tied to the authority of Congress to regulate commerce.

“Whatever one thinks of the policy decision Congress made, it was Congress’ prerogative to make it,” she wrote.

Heath care is not like any other product or service because everyone will need health care, she argued. Furthermore, hospitals cannot deny their services regardless of anyone’s ability to pay. Those who cannot or do not want to obtain insurance on their own are simply getting a free ride at the expense of those who do pay, Ginsburg wrote.

“(Providing) health care is today a concern of national dimension, just as the provision of old-age and survivors’ benefits was in the 1930s,” Ginsburg wrote. “Beyond question, Congress could have adopted a similar scheme for health care. Congress chose, instead, to preserve a central role for private insurers and state governments. According to the chief justice, the Commerce Clause does not permit that preservation. .”

Since 1937, the Supreme Court has repeatedly ruled that Congress has authority to set the course in economic and social welfare. In enacting the new law, Congress sought to reform the national market for health care, where Americans spent $2.5 trillion in 2009, or 17.6 percent of the nation’s economy, according to the opinion joined by Justices Sonia Sotomayor, Stephen Breyer and Elena Kagan.