The Supreme Court decision to uphold the constitutionality of the individual insurance mandate in the Affordable Care Act is a victory for the common good worthy of prolonged celebration. The individual mandate is an important part of the ACA’s central purpose of providing universal insurance coverage for our wealthy nation, in which, shockingly, 40 million of our brothers and sisters do not have health insurance coverage. The mandate helps control health care costs by bringing all Americans into the risk pool. It addresses the so-called “death spiral” as the costs of paying for care for the uninsured causes ever higher costs for the insured, leading more and employers and individuals to drop insurance coverage.
The Affordable Care Act is the closest our nation has managed to come to providing universal health care. Pope Benedict XVI has taught that access to health care is an essential dimension of distributive justice and that access to care is a fundamental moral imperative:
In the health-care sector too, which is an integral part of everyone’s life and of the common good, it is important to establish a real distributive justice which, on the basis of objective needs, guarantees adequate care to all. Consequently, if it is not to become inhuman, the world of health care cannot disregard the moral rules that must govern it.
The Vatican has recently lent its support to the World Health Assembly resolution on financing universal health care coverage. Universal health care coverage is a moral obligation for society. This obligation has been obscured in the fog of inflammatory charges of “socialism” which are all the more egregious against a law based on private insurance coverage.
The nature of the Court’s decision is worth noting. It is worthy both of celebration and concern. It was the result of a real political compromise of the sort we don’t see any more. Chief Justice Roberts is to be commended for his wisdom and prudence in this matter that enabled him to join with other justices to support the individual mandate as a legitimate exercise of Congress’s taxation authority. Such politics are not merely exercises in good will. It was a shrewd move on his part. The Chief Justice was able to advance his agenda to limit Congress’s power under the Commerce Clause without incurring the explosive wrath that an overturning of the ACA would have brought. This frees the Roberts’ Court to pursue a very significant revolution in cases less likely to draw public interest and scrutiny.
Catholic attention to the Supreme Court has rightfully focused on Roe v. Wade, to the unfortunate exclusion of all other issues. Commerce Clause jurisprudence involves complex minutiae. It is, nonetheless, of fundamental importance to our government’s ability to serve the common good in the contemporary moment and the major crises we will no doubt face in the future.
In the powers enumerated to the legislative branch, the Constitution grants Congress the power to "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Two centuries of arguments and court decisions have wrestled and fought over the meaning and scope of these powers. Interpretations of the scope of these powers broadened in the face of the rise of corporate power in the Gilded Age and in the face of the national crisis of the Great Depression.
Like many conservative jurists, Roberts has questioned the breadth of the interpretation of Congress’s power under the Commerce Clause. Many agree with Supreme Court decisions that legislation such as Gun Free Schools Act and the Violence Against Women Act did not adequately demonstrate their connection to interstate commerce. Roberts was questioned extensively about his views of the Commerce Clause during his confirmation hearings. The questions were motivated in part by a notable dissent Roberts authored in a case concerning the Endangered Species Act in which he questioned the applicability of Congress’s commerce powers to the fate of a “hapless toad that, for reasons of its own, lives its entire life in California.” In that opinion, Roberts noted that other rationales could be found that were consistent with “Supreme Court precedent.” This is precisely what he did regarding the Affordable Care Act: He found a different rationale from that advocated by the Obama administration in its defense of the ACA. Nevertheless, the questions Roberts raised regarding the toad, could undercut the federal government power to protect the environment, water and air.
Limits on federal power are often presented as getting “big government” out of the way so that private liberty may flourish. But neo-federalism and libertarianism generally ignore the massive presence of large and powerful corporations in the private sphere. These national and trans-national organizations have the power to run rough shod over the liberty of individual citizens, communities, and indeed state governments. They much prefer the more limited and pliable power of disparate state legislatures to federal legislation and oversight.
What is at stake is not the assumption that “only government can solve our problems” as so-called conservatives often argue. Rather the question is whether we will have a government powerful enough to provide for the common good and to enact the will of the people in the face of massive private power that rivals the powers of nation-states.
Courts in the Gilded Age and the Great Depression realized that the Constitution provided authority to contend with these forces. We need to be vigilant regarding the current Supreme Court’s decisions regarding these powers. But, in the meantime, we can celebrate the fact that the ACA is still the law of the land.
