We conclude that the individual mandate exceeds Congress’s commerce power. Properly formulated, we perceive the question before us to be whether the federal government can issue a mandate that Americans purchase and maintain health insurance from a private company for the entirety of their lives. … Every day, Americans decide what products to buy, where to invest or save, and how to pay for future contingencies such as their retirement, their children’s education, and their health care. The government contends that embedded in the Commerce Clause is the power to override these ordinary decisions and redirect those funds to other purposes. Under this theory, because Americans have money to spend and must inevitably make decisions on where to spend it, the Commerce Clause gives Congress the power to direct and compel an individual’s spending in order to further its overarching regulatory goals, such as reducing the number of uninsureds and the amount of uncompensated health care.
Given the attractiveness of the power to compel behavior in order to solve important problems, we find it illuminating that Americans have, historically, been subject only to a limited set of personal mandates: serving on juries, registering for the draft, filing tax returns, and responding to the census. These mandates are in the nature of duties owed to the government attendant to citizenship, and they contain clear foundations in the constitutional text. Additionally, all these mandates involve a citizen directly interacting with the government, whereas the individual mandate requires an individual to enter into a compulsory contract with a private company. In these respects, the individual mandate is a sharp departure from all prior exercises of federal power.
In sum, the individual mandate is breathtaking in its expansive scope. It regulates those who have not entered the health-care market at all. It regulates those who have entered the health-care market, but have not entered the insurance market (and have no intention of doing so). The government’s position amounts to an argument that the mere fact of an individual’s existence substantially affects interstate commerce, and therefore Congress may regulate them at every point of their life.
Appellants’ primary argument is that Congress cannot require individuals with no connection to interstate commerce, and no desire to purchase a product, nonetheless to do so. The government counters that because virtually everyone will, at some point, need health services, no one is truly inactive. Congress found that those who do not purchase health insurance, and instead self-insure, almost inevitably take health-care services they cannot afford. Hospitals, by virtue of federal law and professional obligation, provide these services, and as a result, $43 billion in annual costs are shifted to the insured, through higher premiums. Indeed, were “activities” of some sort to be required before the Commerce Clause could be invoked, it would be rather difficult to define such “activity.” For instance, our drug and child pornography laws, criminalizing mere possession, have been upheld no matter how passive the possession … on the theory that possession makes active trade more likely in the future.
We acknowledge some discomfort with the government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce. It suffices for this case to recognize that the health insurance market is a rather unique one, both because virtually everyone will enter or affect it, and because the uninsured inflict a disproportionate harm on the rest of the market.
That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power surely explains why Congress has not used this authority beforebut that seems to us a political judgment rather than a recognition of constitutional limitations. It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race. The right to be free from federal regulation is not absolute and yields to the imperative that Congress be free to forge national solutions to national problems.
— Against: Issued in Atlanta and co-written last August by Chief Judge Joel Dubina, appointed by George H.W. Bush, and Judge Frank Hull, a Clinton appointee. For: Written in November in Washington by Senior Judge Laurence Silberman, a Reagan appointee.