Universal Health Care: Is It Constitutional?

The heart of the challenge to the new federal health-care program is this image: an individual is doing nothing at all, bothering no one, when suddenly a federal bureaucrat appears and requires him or her to buy a commercial product or pay a tax. The program's opponents claim that, in the guise of regulating commercial activity, it regulates "inactivity." This, it is claimed, is unprecedented and tyrannical.

Three federal courts so far have taken a first look at the argument. One, in Michigan, rejected it. The second, in Virginia, indicated that it needs careful consideration. The third, Thursday's ruling from a District Court in Florida, bought it hook, line, and sinker.

When I read the argument about whether the government can regulate "inactivity," though, I can't help thinking about Ollie's Barbecue in Birmingham, Alabama. Ollie's was a neighborhood eatery. It never advertised. And when Congress passed the Civil Rights Act of 1964, Ollie's owner went to court to argue that Congress could not possibly regulate his private, local business and its personal decision of whom not to serve. A three-judge federal panel agreed: "No case has been called to our attention... which has held that the national government has the power to control the conduct of people on the local level because they may happen to trade sporadically with persons who may be traveling in interstate commerce."

At the time that decision was rendered, those arguments were taken quite seriously. Discrimination on private property was "private," it was argued, even when that property was open to the public; unless the owner chose to involve the property in interstate commerce, Congress was overstepping the Commerce Power in trying to regulate it.

Fortunately for us all--including the people, black and white, of the South--the Supreme Court rejected this argument and sustained the Civil Rights Act of 1964. That Act, more than any other single piece of legislation or court decision, is what made the United States a single, prosperous, unified market. No one (except Rand Paul), looking back, can muster any real regret that the Ollie's Barbecues of the nation were compelled to assist in their own success. And few people today would seriously argue that a local business that discriminates is somehow not affecting commerce.

Now the argument is advanced that the individual who chooses to do without insurance for his or her family is making a purely private choice, like not liking Brussels sprouts. "Those who fall under the individual mandate either comply with it, or they are penalized," wrote Judge Roger Vinson in the decision of the Florida court. "It is not based on an activity that they make the choice to undertake."

One can agree with Judge Vinson up to a point and still believe he got the issue completely wrong. The tax penalty imposed by the new legislation on individuals who refuse to insure their families really isn't based on something most of them can choose to do or not to do. It's based on something they almost certainly do not, and probably cannot, refuse to do: consume health care services. No matter how thrifty and antisocial any of us may be, no matter how devoted to homeopathy and Yoga, eventually virtually all of us will end up in an emergency room, hospital, or hospice. Even if by extraordinary effort we prevail on others to stand by and allow us to bleed out on the rumpus-room floor, we usually cannot convince them, no matter how earnestly we plead, to let our children die; state law will require they be treated. And someone will pay the cost. That you were "inactive" in getting them the care your children require should not exempt you from being the one who pays their bills.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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